RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2004-00223
		INDEX CODE 112.10  112.07
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

One of the following remedies be granted so he may become eligible for the $30,000 Career Status Bonus (CSB):

1.  His grade of technical sergeant (TSgt) be restored with a date of rank (DOR) of 1 Jul 98, or

2.  His grade of staff sergeant (SSgt) be restored with a DOR of 1 May 94, or

3.  His Total Active Federal Military Service (TAFMS) date be changed from Apr 88 to Sep 88, or

4.  The CSB be retroactively applied once he is selected for staff sergeant (SSgt), or

5.  He be made eligible to reenlist as an exception to High Year of Tenure (HYT) policy. 

[Note: Options #1 and #2 were considered and denied in an earlier AFBCMR appeal--See Statement of Facts below.]

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APPLICANT CONTENDS THAT:

He is a senior airman (SRA) who will have 16 years of TAFMS in Apr 04. He was reduced in grade from TSgt to airman basic by court-martial in Nov 01. He completed the Return to Duty Program (RTDP) and was recently promoted to SRA through the AFBCMR process. He currently is not eligible to reenlist because of HYT restrictions. Since he is not reenlistment eligible, he does not qualify for the CSB. He has been afforded the opportunity to test for SSgt in promotion cycle 04E5. If he is selected, he becomes reenlistment and retirement eligible. However, by the time the promotion list is released, he will be past his 16-year mark and will be ineligible for the CSB. He asks to be made reenlistment eligible before he reaches his 16-year mark as an exception to HYT policy so that he may apply for the CSB. He realizes he put himself in this position due to his misconduct but he also believes he is still being punished by not being allowed to participate in the CSB program.

The applicant’s complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The applicant’s TAFMS date is 14 Apr 88, according to his 1 Oct 03 Statement of Service.

A 19 Nov 01 general court-martial reduced the applicant from TSgt to airman basic, confined him for 12 months, and sentenced him to a bad conduct discharge (BCD). The charges involved dereliction of duty, larceny, forgery, uttering bad checks, failing to pay a debt, and mail theft. The applicant completed the RTDP and the BCD was remitted. He was promoted to airman on 9 Apr 03 and would have reached his HYT on 2 Feb 04. This made him ineligible for promotion consideration to SSgt. In a 15 May 03 appeal to the AFBCMR, the applicant requested reinstatement to the grade of SSgt (DOR 1 May 94) so he would be able to reenlist and continue his career. Restoration to SSgt would have automatically restored him to the grade of TSgt. On 10 Sep 03, the Board did not restore his SSgt grade but instead promoted him to senior airman effective 9 Apr 03 and waived the HYT restriction so he could be eligible for promotion consideration by the 04E5 cycle.

For an accounting of the facts and circumstances surrounding the applicant’s earlier appeal and the rationale of that decision by the Board, see the Record of Proceedings (ROP) at Exhibit C.

On 19 Nov 03, through a second AFBCMR action, the applicant was given a constructive reenlistment, reenlisting him on 1 Jan 03 for two years and extending his HYT date to 31 Dec 04.

The Fiscal Year 2000 National Defense Authorization Act (FY00 NDAA), Public Law 106-65, changed the military retirement system. Specifically, the change places those persons who first become members of a Uniformed Service on or after 1 Aug 86 (as determined by their Date of Initial Entry into Military Service/Uniform Service (DIEMS/DIEUS)), under the High-3/50% retired plan unless they elect to receive a $30,000 one-time lump-sum bonus on or about the 15th year of active duty service. To receive the CSB, a member agrees to remain on active duty through 20 years of active service and to have retired pay computed under the provisions of the 1986 Military Retirement Reform Act (MRRA), commonly known as REDUX. These changes were effective 1 Oct 99. [Note: The DIEUS was formerly known as the DIEMS.]

A member’s eligibility for the CSB hinges on the date he first became a member; if the DIEMS/DIEUS is before 1 Aug 86, the member is not eligible for the CSB; if the entry date is after 1 Aug 86, the member is eligible. The member must also be eligible to reenlist.

The first day the applicant became a member of a Uniform Service was 7 Aug 86, when he enlisted in the Air Force Reserve (Delayed Entry/Enlistment Program (DEP)). Therefore, his DIEMS/DIEUS meets the CSB eligibility.

Summary:  The applicant’s DIEMS/DIEUS meets the post-1 Aug 86 CSB criteria. He reaches his 16-year point on 14 Apr 04. His present reenlistment (RE) code of 4D renders him ineligible to reenlist because of HYT restrictions, i.e., he has not yet been promoted to SSgt. Unless he is able to reenlist before 14 Apr 04, he will not be eligible for the CSB. The 16-year restriction is determined by statute. He will test for the 04E5 cycle, but the results will not be released until he is past his 16-year point. If selected, the applicant will be able to continue his career and become eligible for retirement, but if he remains ineligible to reenlist before he reaches 16 years, he forfeits the CSB.  

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AIR FORCE EVALUATION:

HQ AFPC/DPPAE confirms the applicant’s RE code of 4D is correct because he is a SRA with more than 9 but less than 16 years of TAFMS. He not reenlistment eligible. 

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/DPPRR notes the applicant is not reenlistment eligible, which renders him ineligible for the CSB, and he will not become enlistment eligible prior to his 16th year of active service. Based on the Public Law and governing directives, the applicant is not eligible for the CSB and may only become eligible if the ineligibility condition has been remedied prior to 16 years of active service. 

A complete copy of the evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant provides various options for relief. He especially favors the first remedy listed above and would have included CSB program information in his original appeal had he known it was going to present a problem. Restoration to TSgt would remedy his situation immediately as long as it occurs before his 16 year TAFMS date.  He realizes he has gotten a second chance and he wants to take full advantage of it. He respectfully requests his eligibility for the CSB be restored.

A complete copy of applicant’s 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 application was timely filed.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of an injustice warranting partial relief. The applicant’s proposed remedies for restoration of his SSgt/TSgt grades were noted; however, he has not persuaded us to overturn our original decision denying those requests. Statute precludes awarding the CSB once a member passes the 16th year of TAFMS, and changing the applicant’s TAFMS date is inappropriately complex given the simpler solution we recommend. We believe the HYT restrictions should be waived and the applicant allowed to reenlist. In our original decision, our goal was to give him a realistic opportunity to continue his career and/or attain retirement eligibility. We did not intend to whitewash his misbehavior to the extent of reinstating his rank of SSgt and TSgt--the applicant should earn these grades back. However, the applicant completed the rigorous RTDP and his latest performance report reflects the highest praise and rating. Had he not run out of time, he would have been eligible for the CSB. Depriving him of the $30,000 bonus seems to be an additional punishment not originally part of his sentence. Therefore, we recommend the HYT restriction be waived and the applicant’s constructive reenlistment on 1 Jan 03 be changed from a period of two years to six. This HYT waiver and additional four-year term of enlistment would satisfy the CSB requirements to be eligible to reenlist and to commit to 20 years of active service.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT, be corrected to show that, on 1 January 2003, as an exception to High Year of Tenure policy, he reenlisted in the Regular Air Force for a period of six (6) years rather than two (2) years.

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The following members of the Board considered this application in Executive Session on 2 March 2004 under the provisions of AFI 36-2603:

			
All members voted to correct the records, as recommended. The following documentary evidence relating to AFBCMR Docket Number BC-2004-00223 was considered:

   Exhibit A.  DD Form 149, dated 19 Jan 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  ROP dated 30 Sep 03.
   Exhibit D.  Letter, HQ AFPC/DPPAE, dated 27 Jan 04.
   Exhibit E.  Letter, HQ AFPC/DPPRR, dated 28 Jan 04.
   Exhibit F.  SAF/MRBR, dated 6 Feb 04.
   Exhibit G.  Letter, Applicant, dated 19 Feb 04.

                                   Chair

AFBCMR BC-2004-00223

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   be corrected to show that, on 1 January 2003, as an exception to High Year of Tenure policy, he reenlisted in the Regular Air Force for a period of six (6) years rather than two (2) years.

                                                                          Director
                                                                          Air Force Review Boards Agency