Military Justice Attorneys
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There are few things more demoralizing to a service member than an involuntary administrative demotion. Administrative demotions are intended to be a force management tool to help commanders ensure a quality enlisted force and place service members at a rank commensurate with their skills and abilities. Unfortunately, administrative demotions are often misused to punish service members for alleged misconduct.
Military Justice Attorneys understand the Air Force’s administrative demotion policy and can help you fight against unjust administrative demotion actions. Contact us today for your free consultation.
OVERVIEW
Administrative demotions can result in the loss of one or more ranks and cause service members to lose thousands of dollars in pay and allowances, not to mention severely damaging their military career and retirement.
While administrative demotions are supposed to occur only in rare circumstances, Air Force commanders frequently use administrative demotions as a way to punish service members suspected of misconduct. This improper demotion not only deprives service members of important due process rights, but often results in multiple rank reductions—a severe punishment that is otherwise reserved only for courts-martial.
DEMOTION AUTHORITY
Department of the Air Force Instruction (DAFI) 36-2502, Enlisted Airman Promotion/Demotion Programs, provides guidance and procedures on demoting enlisted Airmen. Within DAFI 36-2502, Chapter 6 governs administrative demotions of Regular Air Force (REGAF) Airmen; Chapter 9 governs administrative demotions for Air Force Reserve (AFR) Airmen; and Chapter 11 governs administrative demotions of Air National Guard (ANG) enlisted personnel.
For administrative demotions of REGAF Airmen, a group commander, or equivalent level commander (e.g. senior Air Force officer in the grade of colonel), is empowered under DAFI 36-2502 to demote MSgts and below. While higher levels of command may also demote an airman, the group commander is the lowest level with demotion authority.
The Major Command (MAJCOM) commander, Field Operating Agency (FOA) commander, and Direct Reporting Unit (DRU) commander may demote those in the grades of SMSgt and CMSgt, or delegate the authority to equivalent level commanders.
Authorized commanders have broad discretion and can demote Airmen multiple grades—the equivalent of a special court-martial conviction. Airmen can be demoted as follows:
Commanders can even demote an Airman by “three or more grades when no reasonable hope exists that the Airman will ever show the proficiency, leadership, or fitness that earned the initial promotion.” While any administrative demotion is a substantial punishment, it is staggering that the Air Force even allows the possibility of demotion by three or more grades.
REASONS TO DEMOTE
Administrative demotions of active-duty Airmen are intended to be a force management tool to help commanders ensure a quality enlisted force and place service members at a rank commensurate with their skills and abilities. Common examples of proper reasons to involuntarily demote an Airman include:
DAFI 36-2502 states that reason for demotion must be supported by a preponderance of evidence to be used as a basis for demotion.
Importantly, administrative demotions are not supposed to be used “when it is more appropriate to take actions specified by the Uniform Code Military Justice (UCMJ).” In fact, DAFI 36-2502 expressly forbids the practice: “Do not use administrative demotions when it is more appropriate to take actions specified by the Uniform Code of Military Justice.”
Unfortunately, this is often the exact reason why demotion is used by Air Force commanders. MJA often hears of Airmen who are administratively demoted for allegedly driving while intoxicated (DWI)–a violation of the UCMJ. In most of these instances, the Airmen are never offered nonjudicial punishment under Article 15, UCMJ–which provides substantially more due process protections to the service member–and are never taken to trial by court-martial. Instead, they are simply stripped of rank through the demotion process.
SERVICE MEMBER’S RIGHTS
A service member has limited rights during the administrative demotion process. This begins with the Unit Commander notifying the Airman in writing of their intent to demote. The notification must cite to AFI36-2502, the demotion authority, the recommended grade for demotion, the specific reasons for demotion, and include a summary of the facts.
Upon receiving the notification, the Airman can “concur” or “not concur” with the proposed demotion and submit written matters on their behalf. The Airman can also request a personal before the initiating commander. If eligible, the Airman can apply for retirement in lieu of a demotion, effective no later than the first day of the fourth month following the initial notification of demotion. The Airman must apply for retirement within 3 working days of receipt of demotion notification memorandum.
Airmen are advised to seek legal counsel in making these determinations. Practically speaking, this is the Airman’s best opportunity to rebut and terminate the demotion action. If a persuasive rebuttal is received, a commander can immediately terminate the demotion process. The commander is only required to inform the Airman of what occurred.
APPEALING A DEMOTION
After being processed by the initiating commander, the demotion is presented to the “demotion authority” for action. The demotion authority can not only approve the recommendation but has the power to take additional grade reductions other than the initiation commander’s recommendation.
However, an approved demotion decision can be appealed. Once informed of the grade to which he or she is demoted, an Airman can appeal the demotion to the appellate authority within 3 working days. The demotion authority can reverse the previous decision and restore the airman’s original grade, or forward the case to the appellate authority without comment. If the appellate authority approves the appeal, the appellate authority can direct that the Airman’s previous grade be restored and the demotion orders revoked.
RETIREMENT IN-LIEU-OF DEMOTION
Unfortunately, administrative demotions are often used as a tool to pressure retirement eligible Airmen to submit for retirement. Under DAFI36-2502, an Airman eligible to retire may elect to apply for “retirement in-lieu-of demotion.” When an Airman applies for retirement in-lieu-of demotion, all demotion action stops until the authorities act on the retirement application. If retirement is approved, then the demotion process terminates. If the retirement application is disapproved, then the demotion process continues. The effective date of retirement will be no later than the 1st day of the 4th month after initial notification of the demotion action. Retirement applications are processed in compliance with AFI 36-3203.
CONCLUSION
The Air Force’s use of administrative demotions is a devastating tool which can result in the loss of multiple grades—the equivalent of a special court-martial punishment. Unfortunately, this process is often misused to punish Airmen for alleged misconduct, thereby depriving them of important due process rights at nonjudicial punishment or court-martial. Airmen facing demotion can fight demotion through effective rebuttals and appeals.
CONTACT MJA TODAY
Military Justice Attorneys understand the Air Force’s administrative demotion policy and can help you fight against unjust administrative demotion actions. If you are facing administrative demotion, contact one of our military defense lawyers today to learn more about your rights.