RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2002-04054
		INDEX CODE:  131.00
	APPLICANT	COUNSEL:  None

	SSN	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His records be reviewed and corrected for promotion to senior master sergeant (SMSgt).

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APPLICANT CONTENDS THAT:

He was erroneously and unjustly denied promotion opportunity to senior master sergeant (SMSgt) and therefore was forced to retire.  In addition, certain conditions were placed upon him for supplemental promotion consideration which were against regulations.  

He filed a complaint with the Inspector General (IG) at the wing level.  The review by the IG failed to identify obvious violations in the USAF supplemental review.

Applicant's complete submission, with attachments, is attached at Exhibit A.

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STATEMENT OF FACTS:

On 10 August 1981, the applicant enlisted in the Regular Air Force as an airman basic for a period of four years.

The applicant’s Date Eligible to Return from Overseas (DEROS) was established as June 2001.  In order to meet the requirements for retirement in September 2001, the applicant on, 18 December 2000, requested a 2-month extension to his DEROS.  The  applicant, on 19 December 2000, submitted an application for voluntary retirement with an effective date of 1 September 2001.  His extension request was approved.  The applicant’s request for retirement was approved on 5 January 2001.  On 19 December 2000, the applicant signed a Pre-Application Checklist acknowledging he understood the effects of Retirement Application on Promotion Eligibility and Retirement under the 7-Day Option.

The applicant was retired on 1 September 2001.  He served 20 years, 20 days of active service.

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AIR FORCE EVALUATION:

HQ AFPC/DPAPP1 states in reviewing the applicant’s application and records, they determined his original DEROS was June 2001 and accordingly, his 25th day of the 8th month would have been in October 2000.  In September 2000 the applicant extended his date of separation from June 2001 to June 2002 for the purpose of a permanent change of station move.  The applicant, in December 2000, applied for retirement and was miscounseled by the military personnel flight (MPF) retirements’ section.  They told him his applying for retirement would not affect his promotion eligibility.  Since his retirement application was submitted after the 25th day of the 8th month, it automatically rendered the applicant ineligible for promotion.  DPAPP1 deferred recommendation to the promotion section.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPRRP states the applicant’s retirement application was processed under the 7-day option program, which stipulates that service members who are assigned overseas who wish to retire and are eligible for retirement, must request a retirement date which is the first day of the month following DEROS.

The applicant, due to applying for retirement, was required to complete   a   Pre-Application   Checklist.  The  applicant, on 19 December 2000, signed the Checklist acknowledging the “Effects of Retirement Application on Promotion Eligibility” and “Retirement Under the 7-Day Option.”  His signature acknowledges the fact that he would become ineligible for promotion if he applied for retirement on or after the 25th day of the 8th month prior to his DEROS.  In order for the applicant to remain eligible for promotion, his retirement application needed to be submitted before October 2000, based on his original DEROS of June 2001.  The applicant did not submit his application for retirement until 19 December 2000, which was after the 25th day of the 8th month prior to his DEROS, therefore, making him ineligible for promotion consideration.

Section 8961, Title 10, United States Code states, “Unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Air Force…who retires other than for physical disability retires in the regular or reserve grade that he holds on date of his retirement.”

AFPC/DPPRRP further states no errors or injustices occurred in the processing of the applicant’s retirement.  He was retired on 1 September 2001 in the grade he held on his retirement date.  They defer to AFPC/DPPPWB regarding promotion consideration to senior master sergeant (SMSgt).  However, if the Board finds in favor of the applicant and determines he should be promoted they will amend his retirement order to reflect the grade of SMSgt.  

A complete copy of the evaluation is at Exhibit D.

AFPC/DPPPWB states no errors occurred in the applicant’s consideration for promotion.  The applicant when he applied for retirement on 19 December 2000 was ineligible for promotion consideration in accordance with promotion policy.  They further state if the Board feels he suffered an injustice due to miscounseling regarding his eligibility for promotion, the Board can direct he be provided supplemental consideration for cycle 01E8 (Exhibit E).

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was aware of the 25th day of the 8th month rule.  He applied for retirement and submitted his extension request at the same time because this is what he was instructed to do.  He signed the Checklist because he was under the impression that his extension request would satisfy the 25th day of the 8th month rule since he had applied for retirement.

He believes it is inaccurate to suggest he was ineligible because of “promotion policy” as suggested by HQ AFPC/DPPPWB.  The Superintendent of Retirements, MSgt K. S., rendered him ineligible for promotion because of a bad read on an ill-fated policy.

He did not apply for retirement under the 7-day option.  His AF Form 1160 states “This not a seven day option.

The applicant’s complete response is at Exhibit G. 

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THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The applicant was timely filed.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting supplemental promotion consideration to the grade of senior master sergeant.  The applicant’s contention that he was miscounseled concerning his promotion eligibility in conjunction with applying for retirement is duly noted.  After a careful review of the applicant’s request and the evidence presented in support of his appeal, we are persuaded the applicant was a victim of a clear injustice.  The applicant in preparation for a 1 September 2001 retirement submitted a request for a two-month extension and a voluntary retirement application in December 2000, both requests were approved.  The applicant, during a briefing regarding his promotion and retirement eligibility, was required to complete a pre-retirement checklist, which stated, “I become ineligible for promotion, if I apply for retirement on or after the 25th day of 8th month prior to my DEROS.”  The applicant requested clarification of this statement from the Retirement and Separation technician and was told that his submitting his retirement application before 25 December 2000 would not render him ineligible for promotion consideration.  In a statement submitted by the technician, she states she interpreted the 25th day of the 8th month starting with January 2001, counting through August 2001, based on the fact the applicant was requesting a DEROS extension for two-months from June-August 2001 for a 1 September 2001 retirement.  In the opinion of the Board, we feel the applicant exhibited due diligence trying to ensure he was in compliance with policy regarding his promotion and retirement eligibility.  In view of the foregoing, we believe the applicant suffered an injustice, as a result of the miscounseling from the Retirement and Separation technician.  Therefore, the Board recommends the applicant be afforded supplemental promotion consideration for cycle 01E8.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be provided supplemental consideration for promotion to the grade of senior master sergeant for cycle 01E8.

If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application, that would have rendered the applicant ineligible for the promotion, such information will be documented and presented to the board for a final determination on the individual's qualification for the promotion.  

If supplemental promotion consideration results in the selection for promotion to the higher grade, immediately after such promotion the records shall be corrected to show that applicant was promoted to the higher grade on the date of rank established by the supplemental promotion and that applicant is entitled to all pay, allowances, and benefits of such grade as of that date.

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The following members of the Board considered AFBCMR Docket Number BC-2002-04054 in Executive Session on 27 May 2003, under the provisions of AFI 36‑2603:

				

All members voted to correct the records as recommended.  The following documentary evidence was considered:

   Exhibit A. DD Form 149, dated 13 Dec 02, w/atchs.
   Exhibit B. Applicant's Master Personnel Records.
   Exhibit C. Letter, HQ AFPC/DPAPP1, dated 22 Jan 03.
   Exhibit D. Letter, HQ AFPC/DPPRP, dated 21 Feb 03, w/atchs.
   Exhibit E. Letter, HQ AFPC/DPPPWB, dated 3 Mar 03, w/atch.
   Exhibit F. Letter, SAF/MRBR, dated 4 Apr 03.
   Exhibit G. Letter, Applicant, dated 7 Apr 03.

AFBCMR BC- BC-2002-04054
INDEX CODE:  110.00

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction for Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116) it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, SSN, be provided supplemental consideration for promotion to the grade of senior master sergeant for cycle 01E8.

	If AFPC discovers any adverse factors during or subsequent to supplemental consideration that are separate and apart, and unrelated to the issues involved in this application, that would have rendered the applicant ineligible for the promotion, such information will be documented and presented to the board for a final determination on the individual's qualification for the promotion.  

	If supplemental promotion consideration results in the selection for promotion to the higher grade, immediately after such promotion the records shall be corrected to show that applicant was promoted to the higher grade on the date of rank established by the supplemental promotion and that applicant is entitled to all pay, allowances, and benefits of such grade as of that date.