RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02309
		INDEX CODE:  110.03, 131.04

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His records be corrected to show he was promoted to the grade of technical sergeant (TSgt) effective and with a date of rank (DOR) of 1 November 2002 and his High Year of Tenure (HYT) date be corrected to reflect March 2009 rather than 7 May 2007 so that he may return to active duty.

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APPLICANT CONTENDS THAT:

On 24 October 2002, while stationed at Osan AB, Korea, and celebrating an impending promotion to the grade of TSgt, he was charged with driving under the influence (DUI).  On 1 November 2002, he was not promoted and on 15 November 2002, he received an Article 15 and was reduced in grade, which was suspended for six months.  On 27 May 2003, he received an “Acceptable” rating on his Enlisted Performance Report (EPR) due to the DUI.  

On 2 April 2007, while stationed at Keesler AFB, he tested for TSgt again.  Upon mentioning the test, his commander brought up his personnel record and told him he had two years left on his enlistment.  He went to renew his identification (ID) card and was told his HYT had expired and that he had to retire right away.  He was told his HYT date was actually 28 April 2007 and that he should have been retired prior to January, 2007.  HQ AFPC directed military personnel flight officials to extend him until 28 June 2007 but advised that his actual retirement date would be 1 June 2007.  He was told that if he did not retire, he would be separated.  He felt he had no choice but to retire or face losing his 20-year retirement.  Because of the forced retirement, he lost all his entitlements such as his terminal leave, permissive TDY and he had to sell 57 days of his leave.  As he retired prior to 14 June 2007, he was not privy to the results of his testing for TSgt.  Had he known he would have been forced to retire, he would have tested for TSgt earlier in April so that he could possibly have been be promoted to TSgt and have his HYT extended, thereby allowing him to stay on active duty for two more years.  He and his family have endured hardships as a result of the unexpected change in his HYT from 2009 to 2007.  He and his wife have four children with three of them in college.  He lost his Basic Allowance for Housing (BAH) and his subsistence allowance, and half his base pay, all unexpectedly and within a very short period of time.  Housing and other expenses on the Mississippi Gulf Coast post Katrina are expensive and adequate employment is hard to find – especially on such short and unexpected notice.  

He further contends that the official handling of his DUI in Korea was not done properly and in accordance with governing Instructions.  Air Force Instruction (AFI) 36-2502, Airman Promotion Program, states that if an airman is non-recommended for promotion, he should receive written notification within five (5) working days.  He never received such a letter and further investigation has shown no such letter exists in his personnel record.  He contends the Air Force, after 20 years of service, did not support him for being a faithful and loyal member.  He feels he was put out of the military and not retired.  He had always enjoyed being a member of the Air Force and looked forward to serving many additional years and competing for many more promotions.  He feels as though he has been punished for one infraction in all his years of service that ended up being far in excess of the original 6-month suspended reduction in grade.

In support of his appeal, the applicant has provided a personal statement, and copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, a Congressional Inquiry and a letter in response, with attachments, the EPR he received in Korea written after his DUI, a Report on Individual personnel (RIP), an Inspector General response to the applicant, and his retirement order.  

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

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STATEMENT OF FACTS:

Applicant entered the Regular Air Force on 9 June 1987.  He was progressively promoted to the grade of staff sergeant (SSgt) with an effective and date of rank (DOR) of 1 December 1995.  He was tentatively selected for promotion to the grade of TSgt during promotion cycle 02E6.  He received promotion sequence number 2833 which would have incremented 1 November 2002.  In October 2002, his personnel record was updated to show his pending promotion was in a mandatory hold status due to an ongoing investigation into a DUI.  On 7 November 2002, he received an Article 15 for the DUI.  His punishment consisted of a reduction to the grade of senior airman (SRA), suspended through 14 May 2003, unless sooner vacated; forfeiture of $876 pay per month for two months; restriction from both Enlisted Clubs at Osan Air Base (AB) for 45 days; restriction from the Red Horse Hooch for 45 days; and 45 days extra duty.  In accordance with AFI 36-2502, he became ineligible for promotion when he received the Article 15 as his line number was removed.

On 12 July 2006, his service record was reviewed and a corrected Statement of Service was issued.  The Statement of Service revealed over two months of active duty he spent with the Army National Guard.  His Total Active Federal Military Service Date (TAFMSD) was therefore changed from 11 March 1987 to 7 January 1987 to accommodate the time spent with the Army National Guard.  Therefore, according to HYT rules, he was to be retired not later than 1 February 2007.

In April 2007, when the MPF realized the applicant should have retired the previous February, they advised him to request immediate retirement effective 1 June 2007 as he could not extend past his Expiration Term of Service (ETS) of 28 June 2007.  On 23 April 2007, the Military Personnel Flight (MPF) contacted HQ AFPC and was directed to correct his HYT to match up with his grade of SSgt and initiated an extension to allow him time for retirement and to continue receiving pay.  His HYT was extended from 7 January 2007 to 7 May 2007 as an exception to policy.

On 7 May 2007, he submitted a complaint to the Air Education and Training Command (AETC) Wing Inspector General (IG) questioning the validity of his non-promotion to TSgt as a result of receiving an Article 15 during November 2002.  He also questioned the 20-year limit of service imposed by the HYT on SSgt’s.  The IG forwarded his complaint to the Mission Support Squadron (MSS) as this issue fell within their purview.  On 17 May 2007, the IG reported that the applicant’s commander should have notified him within five days of the promotion withhold action; however, there was no evidence found to show his commander actually generated the letter.  He was relieved from active duty and retired effective 1 June 2007 after having served 20 years, 4 months and 24 days on active duty.

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AIR FORCE EVALUATION:

AFPC/DPPPEP was tasked to address any contentions the applicant had with the EPR he received after his DUI.  DPPPEP notes the applicant is not contesting the EPR and it appears to be mentioned for reference only.  There are no errors and the EPR is in compliance with established Instructions.

DPPPEP’s complete evaluation is at Exhibit B.

AFPC/DPPPWB addresses the applicant’s request for promotion to TSgt and recommends denial.  DPPPWB notes his statement he never received a promotion non-recommendation letter and states that in accordance with AFI 36-3502, Table 1.1, rule 19, he became ineligible for promotion when he received the Article 15 suspended reduction.

DPPPWB’s complete evaluation is at Exhibit C.

AFPC/DPPRRP addresses the applicant’s request to change his HYT back to the HYT date of 11 March 2009 rather than 7 May 2007.  As his promotion to TSgt was never consummated, his HYT should have remained at 7 January 2007 and his TAFMS at 20 years.  Consequently, he should have retired not later than 1 February 2007.  Hardship extensions of HYT, while infrequent, should be submitted only if the airman can show extreme hardship not common to his contemporaries or in the best interest of the Air Force.  Additionally, those hardship HYT extensions that are granted make the member ineligible for promotion.  He was extended to 7 May 2007 as an exception to policy to allow him to retire instead of face separation.  While he could have done so, DPPRRP states there is no evidence the applicant requested an extension of his 7 May 2007 HYT exception to policy on the basis of hardship and therefore recommends denial.

DPPPWB’s complete evaluation, with attachment, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 21 September 2007 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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 correction in regards to his rushed and wholly unexpected discharge from the Air Force.  We understand the policy surrounding HYT and the need for such a program.  However, we believe its use in this instance visited an extreme injustice upon the applicant and his family.  The Air Force realized their error regarding the applicant’s HYT date, and, instead of making a conscious effort to ensure he was provided transitional benefits to which he was entitled, the Air Force made haste to fulfill policy requirements without regard to what the member and his family might suffer as a result and forced him into immediate retirement.  It is our view, that the Air Force erred in its handling of this HYT case and we therefore recommend his records be corrected as indicated below.

4.  Notwithstanding the above, we find insufficient relevant evidence has been presented to demonstrate the existence of error or injustice in regards to his request for promotion to technical sergeant.  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 its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Because of the passage of time and the disposition instruction for documents contained in military personnel records, we cannot confirm or deny that his commander presented him with a written notification of withhold of his promotion in accordance with AFI 36-2502.  Nevertheless, for the sake of argument, even if his commander had not followed up his verbal order not to assume the grade with written notification within five days as required by the Instruction, in our opinion, failure to do so does not constitute an automatic entitlement to the grade.  His line number for promotion to technical sergeant was removed as a result of his receipt of a suspended reduction as part of his Article 15 punishment, which rendered him ineligible for promotion.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the promotion relief sought in this application.

5.  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.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a. On 31 May 2007, he applied for a waiver of his HYT date, and the waiver was approved by competent authority.

	b. He was honorably discharged on 31 May 2007 and reenlisted in the Regular Air Force on 1 June 2007 for a period of two years.

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The following members of the Board considered AFBCMR Docket Number BC-2007-02309 in Executive Session on 30 October 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered pertaining to AFBCMR Docket Number BC-2007-02309:

    Exhibit A. DD Form 149, dated 13 July 2007, w/atchs.
    Exhibit B. Letter, AFPC/DPPPEP, dated 30 July 2007.
    Exhibit C. Letter, AFPC/DPPPWB, dated 31 July 2007.
    Exhibit D. Letter, AFPC/DPPRRP, dated 7 August 2007, w/atch.
    Exhibit E. Letter, SAF/MRBR, dated 21 September 2007.