RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01722
		INDEX NUMBER:  129.00
		COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

He be retired in the grade of chief master sergeant (CMSgt) (E-9) rather than senior master sergeant (SMSgt) (E-8).

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APPLICANT CONTENDS THAT:

He was demoted by punishment under Article 15 for a violation that had occurred two and one-half years prior.  He was convinced by his military counsel to accept the demotion based on the presumption that he would be able to retire at the highest grade he had held, CMSgt.  After he was demoted, the Air Force Instruction changed within 30 days and he was not allowed to retire at the higher grade.  If he had known he would not be able to retire in the higher grade, he would have requested a court-martial, given the timeframe of his alleged offense.

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

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 23 May 74 and was progressively promoted to the grade of CMSgt.  On 6 May 98, his commander offered him proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ) for the alleged offense of dereliction of duty for failing to refrain from engaging in an unprofessional relationship by having a sexual relationship with a subordinate member of his unit in the grade of senior airman.  The applicant consulted counsel and on 8 May 98, elected to accept Article 15 proceedings.  He submitted a written presentation, but did not desire to make a personal appearance.  On 22 May 98, the applicant’s commander determined that he had committed the alleged offense and imposed punishment consisting of reduction to the grade of SMSgt and a reprimand.  On 27 May 98, the applicant indicated that he would appeal the punishment, but on 1 Jun 98 withdrew his decision to appeal.  On 29 May 98, the applicant requested voluntary retirement to be effective 1 Aug 98.  His request was approved.  On 8 Jul 98, the Secretary of the Air Force Personnel Council determined that the applicant did not serve satisfactorily in any higher grade than SMSgt and would not be advanced under the provisions of Section 8964, Title 10, U.S.C.  The applicant retired effective 1 Aug 98 in the grade of SMSgt.

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AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial of the applicant’s request.  Section 8964, Title 10, U.S.C. allows the advancement of enlisted members on the retired list to the highest grade satisfactorily held while on active duty when their combined active and retired list service totals 30 years.  The Secretary of the Air Force (SECAF) determines if the individual will be advanced.  This authority has been delegated by the SECAF to the SECAF Personnel Council (SAFPC).  On 8 Jul 98, SAFPC determined that the highest grade the applicant served satisfactorily in within the meaning of Title 10, U.S.C., Section 8964, was SMSgt.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 25 Jun 04 for review and comment within 30 days.  To date, a response has not been received.

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.
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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 Docket Number BC-2004-01722 in Executive Session on 3 August 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 May 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPRRP, undated, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Jun 04.