RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-00059
INDEX CODE:  129.04
	XXXXXXXXXXXXXXXX				COUNSEL: NONE

	XXXXXXXXXXX					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

He be retired in the grade of master sergeant (E-7). 
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APPLICANT CONTENDS THAT:

He served in the grade of master sergeant (MSgt) from 1 October 1974 to 3 December 1974; therefore, he should be retired in that grade.  He knows another individual in his same career field who retired under the same circumstances and was able to retain his grade of MSgt.  

In support of his application, the applicant provides a personal statement; a copy of his promotion order and promotion list; a copy of the AFMPC message disapproving his service commitment waiver; and a copy of his retirement action notification.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 31 May 1955, the applicant enlisted in the Air Force at the age of 17 for a period of four years in the rank of airman basic (E-1).  The applicant was progressively promoted to the rank of master sergeant effective and with a date of rank of 1 October 1974.  On 1 October 1974, he signed an AF Form 1160, Application for Voluntary Retirement, with an effective date of 1 June 1975.  The applicant was demoted to the permanent grade of technical sergeant effective 3 December 1974 with a date of rank of 1 July 1969.  The applicant retired effective 1 June 1975 in the grade of technical sergeant.  He had served 20 years and 1 day of active service. 
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AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial.  It is DPPPWB opinion that the applicant’s request should be dismissed under the equitable doctrine of laches, which denies relief to one who has unreasonably and inexcusably delayed asserting a claim.  In addition, DPPPWB states the applicant’s case should be denied because he voluntarily refused his promotion to MSgt.  DPPPWB states that the applicant was selected for promotion to MSgt during cycle 75A7 (applicant pinned-on rank and was later demoted due to his retirement request) and again during cycle 75B7.  The applicant did not pull his retirement papers nor extend his retirement date; therefore, refusing his second selection to MSgt.  The AFPC/DPPPWB evaluation is at Exhibit C.

AFPC/DPPRRP recommends denying the applicant’s request.  In accordance to Section 8961, Title 10, United States Code (USC), the applicant was correctly retired in the grade of technical sergeant, which was the grade he held on the date of his retirement.  DPPRRP recommends the Secretary of the Air Force Personnel Council (SAFPC) make a determination as to whether the applicant served satisfactorily in the higher grade of MSgt for advancement purposes under Section 8964, Title 10, USC.  Section 8964, Title 10 USC allows the advancement of enlisted members on the retired list (when their active service plus service on the retired list totals 30 years) to the highest grade held in which they served satisfactorily on active duty as determined by the Secretary of the Air Force.  The DPPRRP evaluation is at Exhibit D.

The SAFPC Legal Advisor concurs with DPPPWB that denial of the applicant’s request is appropriate since he voluntarily refused promotion to MSgt.  

In response to DPPRRP’s request for review, the SAFPC Legal Advisor states that because the applicant was voluntarily demoted following his decision to retire, rather than comply with the 2-year time-in-grade requirement, he is not entitled to consideration for advancement on the retired list in accordance with Section 8964, Title 10, USC.  

The SAFPC Legal Advisor also reviewed the records of the individual whose circumstances the applicant claims are identical to his.  The SAFPC Legal Advisor states that review of the cited individual’s records reveals he was the recipient of an administrative oversight to his advantage which in no way compels the same results for the applicant.  The SAFPC Legal Advisor goes on to state that unlike the applicant, personnel officials failed to note on the cited individual’s AF Form 1160 that he had failed to complete the minimum time-in-service requirement.  It also does not appear that the individual applied for a waiver of this requirement or notify processing officials that he had an additional ten months to serve in order to retire at his present grade.  It is the SAFPC Legal Advisor’s opinion that the cited individual’s good fortune is not a proper basis on which to grant relief to the applicant.  The SAFPC Legal Advisor’s evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims his circumstances are identical to the circumstances of the other individual he used as an example; however, the other individual was able to retire as a MSgt and his waiver was disapproved.  The applicant attached copies of his performance reports received while he held a position as an evaluator on the Strategic Air Command Maintenance Standardization Evaluation Team, claiming the position required the grade of a MSgt and he was chosen for it because of his expertise.  

In response to the SAFPC legal review, the applicant comments that the same regulations should apply to both him and the other individual he’s comparing his records to.  Since the other individual was able to retire as a MSgt at ten months short of completing his service commitment, then he should also be allowed to retire as a MSgt with sixteen months short of fulfilling his service commitment.  The applicant’s rebuttals are 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 application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  Evidence found in the applicant’s records indicates he signed an AF Form 1160, Application for Voluntary Retirement, on 1 October 1974, prior to fulfilling his required service retainability of 24 months for promotion to master sergeant.  His decision made him ineligible to retain his promotion.  The applicant requested a waiver of his time-in-grade requirement; however, it was disapproved on 31 October 1974.  Accordingly, he was demoted to technical sergeant.  We note the applicant was again considered and selected for promotion to master sergeant on 9 January 1975; however, the applicant declined the promotion.  The applicant asserts he is aware of a similar situation where a military member was allowed to maintain his promotion to master sergeant without fulfilling his 24-month service obligation.  After reviewing the case file of the other military member, it appears personnel officials failed to note that individual’s failure to complete the required time-in-service requirement.  However, we agree with the Air Force legal advisor, that this oversight is not a proper basis on which to grant relief to the applicant.  The fact that personnel officials incorrectly processed one other military member’s retirement does not, in our opinion, provide a basis for retroactively promoting the applicant.  We find the consequences of the applicant’s decisions were consistent with Air Force policies in effect at that time.  No evidence has been provided showing that the applicant was miscounseled or that his decision to retire was in any way coerced.  Furthermore, there was no guarantee that if he applied for a service commitment waiver, it would have been approved.  Therefore, we agree the assessment by the Air Force offices of primary responsibility and find no basis on which to favorably consider this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 23 July 2003 and 3 February 2004, under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number BC-2003-00059 was considered:

	Exhibit A.  DD Form 149, dated 30 Dec 02, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPPPWB, dated 13 Feb 03.
	Exhibit D.  Letter, AFPC/DPPRRP, dated 7 Mar 03.
	Exhibit E.  Letter, SAFPC, dated 24 Jun 03.
	Exhibit F.  Letter, SAF/MRBR, dated 14 Mar 03.
	Exhibit G.  Applicant’s Rebuttal, undated.