ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00487
		INDEX CODE:  136.00
		COUNSEL: 
		HEARING DESIRED:  NO
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APPLICANT REQUESTS THAT:

His records be corrected to reflect he retired in the grade of Master Sergeant (E-7), effective 1 Dec 03 or that his records be corrected to direct advancement to the grade of E-7 effective upon 30 years of combined active duty and retired service.

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RESUME OF CASE:

In his initial application, the applicant requested:

	1.  The charge of failure to go, violation of Article 86 of the Uniform Code of Military Justice, be removed from the Article 15 imposed on him on 18 Aug 03.

	2, His reduction to the grade of technical sergeant (E-6) imposed as punishment under Article 15 on 18 Aug 03 be set aside or suspended and he be returned to the grade of master sergeant (E-7).

On 10 Jun 04, the Board considered and denied his request after finding that he had not provided the evidence necessary to substantiate his claim that the punishment he received was too harsh given his retirement and that his retirement also precluded the Article 15 from being used as a rehabilitative tool.  In addition, because he signed his application for voluntary retirement on 21 Sep 03, after he had already received the Article 15, the Board felt it appeared it was his own decision to leave the service when he did (Exhibit G).

The applicant has since procured the services of counsel, and requests his case be reconsidered based on new evidence.  Applicant refutes the Board’s conclusion that it was his “own decision to leave the service when he did,” but declares that he had no choice but to retire based on Air Force high year of tenure rules.

In support of his latest request, he submits counsel brief with attachments.

His complete submission is at Exhibit H.
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AIR FORCE EVALUATION:

HQ AFPC/DPSOR recommends denial.  Applicant’s enlistment date was 5 Dec 01 and his date of separation (DOS) was 4 Dec 03.  In 1991, the Air Force established 24 years Total Active Federal Military Service (TAFMS) as the high year tenure (HYT) for MSgt, the limit in place on the date of his enlistment.  Applicant’s HYT as MSgt of 5 Nov 03, and AFI 36-3203, Service Retirements, para 2.20., required that he retire the first day of the month after HYT, or not later than 1 Dec 03.  

Effective 1 Jan 03, the Air Force raised the HYT of MSgt to 26 years TAFMS and the HYT for TSgt to 24 years TAFMS.  Applicant, while in the grade of MSgt, did not extend or reenlist for the additional two years allowable under the new HYT policy.  Meanwhile, the commander reduced the applicant’s grade to TSgt effective 18 Aug 03.  As a result of his reduction in grade, the Air Force prohibited him from enlisting or extending past 24 years TAFMS, the new HYT for TSgt.  With a 4 Dec 03 DOS and his TSgt HYT of 5 Nov 03, he either would have had to voluntarily request retirement for the first day of the month following his HYT (1 Dec 03) or be discharged on his DOS of 4 Dec 03.  

He would have been discharged on 4 Dec 03 if he had not requested retirement on 1 Dec 03, the first day of the month after reaching his HYT.  The law clearly states that an enlisted member must request retirement from the Air Force.  

The complete DPSOE evaluation, with attachment, is at Exhibit I.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant was required to retire on 1 Dec 03.  The Air Force advisory opinion agrees that, contrary to what was said in the AFBCMR’s original decision, the applicant could not choose to remain on active duty in order to regain the rank he lost as a result of the Article 15 punishment.  The advisory opinion does not address the remaining claims made by the applicant and should be given no weight.

Counsel’s complete submission is at Exhibit K.

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THE BOARD CONCLUDES THAT:

After a careful reconsideration of the applicant's request and his most recent submission, we do not find it sufficiently compelling to warrant a revision of the Board’s prior decision in this case.  Counsel’s brief is duly noted; however, we were not persuaded that the applicant’s retirement was improper or not in compliance with the governing instructions in effect at the time.  Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our decision to deny the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 9 Dec 08, under the provisions of AFI 36‑2603:

The following documentary evidence was considered in AFBCMR Docket Number BC-2004-000487:

	Exhibit G.	Record of Proceedings, dated 26 Jul 04, w/atchs.
	Exhibit H.	DD Form 149, dated 1 Jan 08, w/atchs.
	Exhibit I.  Letter, HQ AFPC/DPSOR, dated 9 Oct 08.
	Exhbiit J.  Letter, SAF/MRBR, dated 24 Oct 08.
	Exhibit K.  Letter, Counsel, dated 23 Nov 08.

                                  Panel Chair