RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01771
		INDEX CODE:  131.05
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His records be corrected to show that he retired as Chief Master Sergeant (CMSgt), his highest grade held.

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APPLICANT CONTENDS THAT:

He was promoted to CMSgt in Nov 96.  He successfully and honorably held that rank for nearly 4 years.  On 1 Sep 00, he volunteered for reduction in grade to SMSgt, in order to accept a position.  He feels that at a minimum, he should have retired as a Senior Master Sergeant (SMSgt) and not received double rank reduction as punishment.  He was forced to withdraw his appeal or not continue with his retirement request.  His reduction in grade was effective after retirement eligibility.  

According to the Area Defense Counsel's handout, "the member receives retirement pay at the highest grade held after becoming eligible to retire.  The save-grade for pay purposes rule is based upon 10 U.S.C. 1401a(f) and 56 Comp. Gen 740."  

In support of the application, the applicant submits his letters from his ADC with attachments and the ADC handout.

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

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STATEMENT OF FACTS:

On 31 May 05, the applicant was separated from the regular Air Force for voluntary retirement in the grade of Master Sergeant (MSgt).  

The following is a resume of his last ten (10) enlisted evaluation reports (EPRs) commencing with the report ending on 5 Jan 96:

PERIOD ENDING	OVERALL PERFORMANCE
	
	 5 Jan 96		5
	26 Nov 97		5
	26 Nov 98		5
	26 Nov 99		5
	11 Jul 00		5
	11 Jul 01		5
	11 Jul 02		5
	 2 Jun 03		5
	 2 Jun 04		5
	*18 Feb 05		2

*Referral Report (Commander-directed)

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

HQ AFPC/JA recommends denial.  JA states the applicant was a full time member of the Air Force Reserves who served at various times on extended active duty.  On 1 Mar 93, he initially entered as a master sergeant – a period of active duty that extended until his retirement.  On 1 Nov 94, he was promoted to the grade of SMSgt.  On 1 Nov 96, he was promoted to the grade of CMSgt.  Subsequently, he accepted a position that required a voluntary demotion to SMSgt effective 1 Sep 00.

JA notes that except for his last EPR, the applicant's reports indicate top ratings.  His last EPR reflected the nonjudicial punishment imposed on 12 Jan 05 for various violations of the UCMJ.  The nonjudicial punishment imposed consisted of a reduction of one grade to MSgt and a reprimand.  On 12 Jan 05, the applicant indicated that he intended to appeal.  On 24 Jan 05, the applicant submitted an appeal that did not address the findings but rather contended the imposed punishment was not proportionate to the offenses.  According to a memo submitted by the applicant from his ADC, dated 10 Feb 05, the applicant withdrew his appeal to the nonjudicial punishment because of an administrative hold that potentially interfered with a requested retirement date of 1 May 05. 

On 31 Mar 05, the applicant applied for retirement.  On 7 Apr 05, a Secretarial determination was made that the applicant did not serve satisfactorily in any higher grade than MSgt for purposes of advancement to the highest grade satisfactorily held at 30 years. 

On 1 Jun 05, the applicant retired as a reserve MSgt with more than 2 years of creditable service for an active duty retirement under federal law.

JA opines corrective action is not warranted with regard to the applicant's retired grade of MSgt because 10 U.S.C. 8961 does not apply to his retirement.  Reserve enlisted members previously administratively reduced in grade not as a result of the member's own misconduct, as determined by the Secretary of the Air Force, are entitled to be retired in the highest grade held on active duty in accordance with 10 U.S.C. 8963.  In this case, the applicant was voluntarily reduced in rank from CMSgt and reduced in rank from SMSgt due to misconduct.  The applicant's last year of active duty was marred by misconduct, and use of 10 U.S.C 8963 as a shield is inapposite to its use as a safeguard to those reservists who accept voluntary demotions to serve on active duty by preserving entitlement to the higher grade.

JA states, as a CMSgt, the applicant's records, EPRs and MSM upon PCS indicate he served satisfactorily.  JA states they are not aware of any evidence of misconduct before the applicant's voluntary demotion to SMSgt.  JA notes the highest grade held on active duty satisfactorily by the applicant was CMSgt, thereby permitting him to be advanced to that grade upon reaching 30 years of service.

JA opines the applicant's claim that he was "forced" to withdraw his appeal or not continue with his "retirement request" is an overstatement and is not supported by the evidence.  JA notes the applicant had ample opportunity to submit his appeal and did so two weeks after punishment was imposed.  

The complete JA 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 12 Oct 07 for review and comment within 30 days.  As of this date, this office has received no response (Exhibit D).

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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.  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 and adopt their rationale as the basis for the 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.

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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 this application in Executive Session on 24 January 2008, under the provisions of AFI 36‑2603:

The following documentary evidence was considered for AFBCMR Docket Number BC-2007-01771:

	Exhibit A.  DD Form 149, dated 22 May 07, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, HQ AFPC/JA, dated 13 Sep 07.
	Exhibit D.  Letter, SAF/MRBR, dated 12 Oct 07.