RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-01677 INDEX CODE: 131.00 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: His retirement grade be changed to master sergeant (MSgt). ________________________________________________________________ _ APPLICANT CONTENDS THAT: His records reflect he served honorably in the grade of MSgt. His records reflect outstanding performance reports and he was decorated five times for exceptional performance. He saved the United States Government over $200,000 a year through the suggestion program. When he accepted the Article 15 for misuse of a Government issued American Express card, his mental state and medical condition was poor. He disagrees with the Secretary of the Air Force findings. He is now rated 100 percent service- connected disabled. In support of his request, the applicant provides a personal statement and a letter from the Department of Veterans Affairs which was attached to his DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10 U.S. Code, Section 1552, dated 15 January 2007. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 15 July 1977 in the grade of airman basic. On 9 December 1997, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using his government American Express card for purposes other than official travel. His punishment consisted of a reduction in grade from MSgt to TSgt, with a new date of rank of 9 December 1997 and forfeiture of $100.00 pay. On 31 December 1997, the applicant was relieved from active duty and on 1 January 1998, the applicant retired in the grade of TSgt. He served 20 years, 5 months, and 16 days on active duty. In accordance with HQ AFPC/DPPRRP’s letter dated 12 June 2007, the applicant’s case was administratively closed. The case was reopened on 19 October 2009, per applicant’s request. On 8 January 1998, the Secretary of the Air Force determined the applicant did not serve satisfactorily in any higher grade and will not be advanced under the provisions of Section 8964, Title 10, United States Code. ________________________________________________________________ _ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. DPSOR states the applicant contends that he should receive retired pay in the grade of MSgt because he was not offered retirement in lieu of demotion. The applicant was not demoted under AFI 36-2503, Administrative Demotion of Airmen, but was reduced in grade as a result of an Article 15 action on 9 December 1997, prior to his date of separation. If the applicant had been subject to an action under AFI 36-2503, he could have requested Secretary of the Air Force consideration for retirement in lieu of demotion. However, there is not an option to apply for retirement in lieu of an Article 15 action. The applicant’s options were to appeal or demand a trial by court-martial. Retirement in lieu of demotion only applies in cases of administrative demotion under Air Force Instructions 36-2503 but this is not applicable to nonjudicial punishment. The applicant states he accepted the Article 15 because he could not risk losing his medical benefits. The applicant applied for retirement via an AF Form 1160, Military Retirement Actions, dated 11 December 1997, two days after the Article 15 punishment was imposed. He requested a retirement effective date of 1 January 1998 (DOS of 31 December 1997). The reduction in grade from MSgt to TSgt entitled him to consideration for advancement on the retired list under 10 USC 8964, when his active duty service and service on the retired list totaled 30 years. The applicant provided no additional evidence to support his claim. The DPSOR complete evaluation, with attachments, is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 31 December 2009, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit D). As of this date, this office has received no response. ________________________________________________________________ _ 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 an 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 that in accordance with Section 8964, Title 10, USC, the applicant was correctly retired in the grade of technical sergeant, which was the grade he held on the date of his retirement and that there are no other provisions of law that would allow for his advancement to the grade of master sergeant. In the absence of evidence to the contrary, we find no basis to overturn the Secretary of the Air Force’s determination that the applicant did not serve satisfactorily in any higher grade. Accordingly, we find no basis on which to favorably consider 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 issue involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ _ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ _ The following members of the Board considered AFBCMR Docket Number BC-2007-01677 in Executive Session on 2 March 2010, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-01677 was considered: Exhibit A. DD Form 149, dated 28 September 2009, w/atchs. Exhibit B. Applicant’s Master Personnel Record. Exhibit C. Letter, AFPC/DPSOR, dated 8 December 2009, w/atchs. Exhibit D. Letter, SAF/MRBR, dated 31 December 2009.