RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00612 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect: 1. His retirement rank as Chief Master Sergeant (CMSgt) rather than Master Sergeant (MSgt) effective 1 Jun 02. 2. He receive the difference in retirement pay between MSgt and CMSgt from 1 Jun 02 until the date of promotion to CMSgt. 3. He receive retirement pay in the rank of CMSgt from the date of promotion. 4. He receive MSgt active duty pay and leave from 2000 through 2002. 5. He receive payment for 89 days of accrued leave. 6. He receive a military retirement ceremony as a CMSgt and any other benefits he would have been entitled to as a CMSgt. _________________________________________________________________ APPLICANT CONTENDS THAT: He should be promoted to CMSgt due to - not having the opportunity to be considered for promotion based on - being unjustly separated in December 2000. He further believes he should receive compensation based on the Air Force Board for Correction of Military Records (AFBCMR) action in 2003 to overturn his wrongful discharge. The applicant's complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 18 Mar 82, the applicant contracted his initial enlistment in the Regular Air Force. He served as a- Formal Training Instructor, Security Forces. In November 2000, the applicant’s commander preferred eight court-martial charges against him for violating several articles under the Uniform Code of Military Justice (UCMJ). He submitted a request to be discharged in lieu of trial by court-martial and waived his right to request lengthy service probation consideration. The convening authority approved his request and he was discharged on 14 Dec 00 with an under other than honorable conditions (UOTHC) discharge in the grade of technical sergeant (TSgt). In August 2002, the applicant submitted an application to the AFBCMR requesting his UOTHC discharge be reconsidered based on lengthy service probation. On 21 Apr 03, the AFBCMR approved his request and directed that his records be corrected to reflect that he was not discharged on 14 Dec 00, but on that date he was continued on active duty, promoted to MSgt on 30 May 02, discharged under honorable conditions on 31 May 02, and retired on 1 Jun 02 for length of service in the grade of MSgt. He was credited with 20 years, 1 month, and 9 days of military service. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which is attached at Exhibits C and D. Accordingly, there is no need to recite these facts in this Record of Proceedings _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOE recommends denial noting current Air Force policy does not allow automatic promotion. The applicant’s original date of rank (DOR) to MSgt was 1 May 96. The applicant was considered and twice nonselected for promotion to MSgt. However, based on his AFBCMR directed promotion to MSgt he would not have been eligible for promotion consideration to SMSgt until 2004; and since he was no longer on active duty he was not eligible for promotion consideration. In addition, the governing Air Force Instruction (AFI) 36-2502, Airman Promotion/Demotion Programs, Table 2.1 states airmen must serve on active duty in enlisted status as of the promotion eligibility cutoff dated (PECD), serving continuous active duty until the effective date of promotion. Furthermore, the applicant does not have all the required weighted factors used to apply the mechanics of the selection process and supplemental promotion consideration. A complete copy of AFPC/DPSOE evaluation is at Exhibit C. AFPC/DSPOR recommends denial of the applicant’s request for retirement in a higher grade and a retirement ceremony noting that Title 10, United States Code (USC), section 8961(b) states that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Air Force who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of retirement. Additionally, AFI 36-3203, Service Retirements, Chapter 6, Recognition on Retirement, a member’s commander is responsible to conduct a retirement ceremony. Since the applicant is retired he is not afforded a retirement ceremony because he has no unit commander to conduct a ceremony. Also, the Defense Finance and Accounting Service (DFAS) compensated the applicant for active duty pay and allowances from 8 Sep 00 to 31 May 02 in the grade of MSgt and he receives 50.208 percent of his High-36 average basic pay as his retired pay plan. Also, the applicant does not have integral weighted factors needed to aid in the NCO promotion selection process and supplemental promotion consideration process. A complete copy of AFPC/DPSOR evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant believes the powers to be are not looking at the full picture and are only trying to base the denial decision on the fact that he asked for a specific rank at a specific time. He is asking for the rank of E-9 and all his other entitlements based on the fact that he was wrongfully terminated and denied future rank. The letter of the law is being used instead of the spirit of the law. He was wrongfully terminated and just like in the civilian world when that happens there are repercussions. He would like an open honest estimation that had he not been wrongfully discharged, what is the estimated timeline of when he could have possibly made his rank over those next 12 years and then to be paid back monetarily what he would have made and, receive a retirement date of 2012 as an E-9. He needs a break down from 1999-2012 (the years he had left to reach high year tenure (HYT) as E-9) of when is the earliest he could have potentially made each rank. He should then be reimbursed monetarily for pay that he would have received had he not been discharged. He also requests that after the above is figured out, that his retirement pay is reflective of the rank that it is decided he could have made. He further requests the 89 days accrued leave pay that was taken. This is not a case of quoting 10 USC 8961(b) or any other legal jargon such as statute of limitations etc. This is a case where the Air Force admitted in writing to making a mistake and a hasty wrongful discharge and he believes he should be compensated accordingly, fairly and reasonably. The applicant’s complete response is at Exhibit E. _________________________________________________________________ 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 an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, including his response to the Air Force evaluations, we are not convinced the applicant should be afforded additional relief beyond that previously provided by the Board. While he contends he should be provided additional relief because his discharge deprived him of further opportunities to compete for promotion, other than his own assertions, he has provided no evidence that were it not for his UOTHC discharge in 2000, he would have been promoted beyond the grade of master sergeant. Furthermore, while the Board previously determined the applicant’s UOTHC discharge and permanent loss of his master sergeant grade and forfeiture of retirement benefits represented an unduly severe lifelong penalty, the evidence presented was not sufficient to conclude the applicant should have been absolved of his misconduct. Therefore, in view of this, we find the applicant’s assertions speculative, and speculation is not a sufficient basis to recommend granting relief. As for his request related to the payment of leave due to him from the previous correction of his records, the applicant is reminded the burden of proof of an error or injustice rests with the applicant and he has provided no evidence to indicate that he did not receive the appropriate pay and allowances due to him from the previous corrections to his records. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material 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-2011-00612 in Executive Session on 17 Nov 11, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 11 Jan 11. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFPC/DPSOE, dated 26 Apr 11. Exhibit D. Letter, AFPC/DPSOR, dated 16 May 11. Exhibit E. Letter, SAF/MRBR, dated 24 Jun 11. Exhibit F. Letter, Applicant, undated. Vice Chair