RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01771
		INDEX CODE:  129.04
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be correct to reflect that he retired in the grade of master sergeant (E-7).

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APPLICANT CONTENDS THAT:

He was guilty as charged and the punishment he received was warranted.  The punishment and misery he endured is restitution for making a mistake.  He asks to be reinstated to the grade of master sergeant because he believes he earned and executed his duties in that grade in a responsible and honorable manner.  He lost his career and marriage for a moment of stupidity.  After his divorce he was forced to file for bankruptcy.  His daughter began to lose her hair because of the major emotional problems caused by his confinement.  His ex-wife died in 1998 and he feels responsible because he was told that her illness began around the time of his court-martial.  It has been hard for him to deal with the pain and suffering he has cost others over the past ten years.  Subsequent to his court-martial he lost his mother and brother.  His brother blamed himself for what had happened to him because he was present when he puffed on the marijuana that ended his life as he had known it.  

He has tried to live every day as the best person, father, brother, and friend that he can.  His life is better now and he is working as an F-16 crew chief at Edwards AFB.  When he was on active duty he tried to be a responsible NCO by being respectful and caring of those under his supervision.  The last decade has reinforced his belief that his devotion to duty and his military family had an immense impact on how successful he was as a master sergeant.

In support of his request, applicant provided a personal statement, character references, his retirement orders, and a copy of his DD Form 214.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 28 Nov 73 and was progressively promoted to the grade of master sergeant, having assumed that grade effective and with a date of rank of 1 Jun 88.

On 13 Mar 93, applicant was tried by special court-martial after a positive urinalysis for the presence of marijuana.  He plead guilty and was found guilty of the specification.  Sentence adjudged on 31 Mar 93 was reduction to the grade of technical sergeant, forfeiture of $922.00 pay per month for three months, and confinement for three months.  On 9 Jul 93, the Secretary of the Air Force Personnel Council (SAF/PC) considered the applicant's case and determined that the applicant did not serve satisfactorily in the grade of master sergeant and did not warrant advancement on the Retired list.  Applicant was retired from the Air Force on 28 Feb 94.  He served 20 years and 20 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied as untimely.  Should the Board decide to consider the case on its merits, denial is recommended.  JAJM states that at the time of his court-martial the applicant had over 19 years of service.  His service had been exemplary.  During sentencing his supporters provided a number of statements which unequivocally held him in high esteem.  The applicant's sentence was well within the legal limits and was an appropriate punishment for the offense committed.  The applicant offered mitigating circumstances in his defense during his court-martial.  The adjudged sentence indicates the members considered his mitigating factors.  

There is no legal basis for upgrading or advancing his rank.  The appropriateness of his sentence is a matter within the discretion of the court-martial and may be mitigated by the convening authority or within the course of the appellate review process.  He had the assistance of counsel and was afforded all rights granted by statute and regulation.  He provides no compelling rationale to mitigate the approved reduction in rank.  While, clemency is an option, there is no reason for the Board to exercise clemency in this case.  Despite his otherwise exemplary service, the pertinent period of service that would justify the advancement of rank did not conclude honorably. The tone of his application suggests that he acknowledges responsibility, but he has not comprehended the gravity of his actions.  He identified no error or injustice related to the prosecution or the sentence.  

The JAJM evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial.  DPPRRP states that in accordance with Section 8691, Title 10, U.S.C., the applicant was correctly retired in the grade of technical sergeant, which was the grade he held on the date of his retirement.  The law which allows for advancement of enlisted members when their service plus service on the retired list totals 30 years, is very specific in its application and intent.  On 9 Jul 93, the SAF/PC made the determination that the applicant did not serve satisfactorily on active duty in and grade higher than technical sergeant.  This determination is final for all purposes of law.  All criteria of the pertinent laws have been met in this regard and no error or injustices occurred in his retirement, grade determination or advancement action.  

The DPPRRP evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 29 Aug 03 for review and comment within 30 days.  As of this date, this office has received no response.

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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.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  There is no error in this case and we do not condone the applicant's use of marijuana, which led to his reduction in grade from master sergeant to technical sergeant by a special court martial.  However, there are mitigating factors within the realm of equity, which reach to the injustice aspect of our recommending authority.  In this regard we note (1) the applicant's outstanding record of performance for over 19 years (2) he plead guilty at his trial and admitted to an "isolated instance of stupidity" (3) he could have been reduced to the lowest enlisted grade and received a Bad Conduct Discharge (4) he was severely punished by receiving a reduction in grade, three months confinement, and fined $2,766 (5) given a life expectancy of 70 years, he stands to lose approximately an additional $35,000, and (6) he is now working as an F-16 crew chief for the Air Force - a job that obviously requires the highest moral standards and integrity.  In view of the foregoing and in consideration of all the circumstances, to continue the punitive aspects caused by the reduction in grade beyond the date he accumulates 10 years on the Retired list is extremely harsh and therefore unjust.  Accordingly, we recommend that his records be corrected to reflect that when his combined active service time plus time on the Retired list equals 30 years, he will be advanced to the grade of master sergeant.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

a.  Competent authority determined that the highest grade he satisfactorily held was the grade of master sergeant.

b.  It is further recommended that when his combined active service time plus time on the Retired list equals 30 years, he will be advanced to the grade of master sergeant.

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The following members of the Board considered AFBCMR Docket Number BC-2003-01771 in Executive Session on 1 Oct 03, 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 20 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, not dated.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 21 Aug 03, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 29 Aug 03.

								Panel Chair

AFBCMR BC-2003-01771

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of 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, be corrected to show that:

		a.  On 9 July 1993, competent authority determined that the highest grade he satisfactorily served on active duty was the grade of master sergeant.

		b.  When his combined active service time plus time on the Retired list equals 30 years; he be advanced on the Retired list to the grade of master sergeant.

                                                                            Director
                                                                            Air Force Review Boards Agency