RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2015-00454 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His retired grade of Technical Sergeant (TSgt) be changed to Master Sergeant (MSgt). APPLICANT CONTENDS THAT: The Secretary of the Air Force only approved his advancement to the grade of TSgt however the highest rank he attained in the Air Force was MSgt. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 9 Sep 85. On 1 Apr 04, the applicant was promoted the grade of MSgt. On 1 Feb 07, the applicant began a new four-year term of enlistment in the grade of MSgt. Under General Court-Martial Order No 2, dated 18 Oct 08, the applicant, then a MSgt, was demoted to the grade of SSgt, effective 1 Aug 08. Under Special Order AC-000975, dated 28 Oct 08, the applicant was relieved from active duty effective 28 Feb 09, retired in the grade of Staff Sergeant (SSgt) effective 1 Mar 09, and was credited with 23 years, 5 months, and 22 day of active service. On 15 Jan 09, SAF/MRBP, on behalf of the Secretary of the Air Force, found the applicant did not serve satisfactorily in the higher grade of MSgt within the meaning of § 8964 Title 10 United States Code (USC), but the applicant did serve satisfactorily in the grade of TSgt, and directed he be advanced to the grade of TSgt on the retired list upon completion of the required service. Under Special Order AC-002889, dated 22 Jan 09, the applicant was advanced to the grade of TSgt on the Retired List, effective 9 Sep 15, due to having completed a total of 30 years of service. The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibit C and D. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice. In accordance with Title 10 USC § 8964, “Higher grade after 30 years of service--enlisted members. (a) Each retired member of the Air Force covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Air Force.” Per the Secretary of the Air Force decision, dated 15 Jan 09, the member did not serve satisfactorily in the higher grade of MSgt, but did serve satisfactorily in the grade of TSgt. Therefore, he was only advanced to the grade of TSgt, the highest grade in which he served on active duty satisfactorily, after 30 total years of service. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 6 Jul 15 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: SAF/MRBP recommends granting the applicant’s request, indicating there is evidence of an error or an injustice. When an Air Force member’s active service plus time on the retired list equals 30 years, Federal law requires the member be “advanced on the retired list to the highest grade“ in which he served “satisfactorily” as determined by the Secretary. The BCMR precedent for determining an “error” in a record requires application of the law or regulation in effect at the time the alleged error impacted the record in question. The version of the applicable AFI in effect at the time was AFI 36-3203, Service Retirements, dated 8 Sep 06. The 8 Sep 06 version of AFI 36-3203 outlines when a lower grade is warranted in retirement, and includes cases where “[t]he highest grade held was terminated for cause (unless the member held the higher grade for at least 6 months during a previous period of service and received an honorable discharge in the higher grade).” In this case, the applicant met the parenthetical-language criteria in the quoted reference because he served honorably during a previous enlistment term in the grade of master sergeant for at least six months. In fact: 1) the applicant’s misconduct happened at the very end of the enlistment term; 2) he received an honorable discharge; 3) the misconduct took place nearly three years after he was promoted to master sergeant; and, 4) the misconduct itself was relatively insignificant. Had SAFPC applied the applicable paragraph to the applicant’s case in 2009, as it would have done post-Jul 13, it very likely would have advanced the applicant to the higher grade of master sergeant. All of the misconduct for which the applicant was found guilty (and one of those specifications was later dismissed by the judge) occurred just prior to his re-enlistment as a master sergeant on 1 Feb 07. Recommend the Board advance the applicant to the grade of MSgt (vice TSgt) because that was his highest grade of satisfactory service, as defined by the correct application of the pertinent rule of the AFI in effect when the grade determination was made. A complete copy of the SAF/MRBP evaluation is at Exhibit E. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the additional Air Force evaluation was forwarded to the applicant on 1 Dec 15 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. FINDINGS AND CONCLUSIONS OF THE BOARD: Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice. We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application. Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application. Accordingly, we find the application untimely. THE BOARD DETERMINES THAT: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. The following members of the Board considered AFBCMR Docket Number BC-2015-00454 in Executive Session on 27 Jan 16 under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A.  DD Form 149, dated 30 Jan 15, w/atchs. Exhibit B.  Applicant's Master Personnel Records. Exhibit C.  Memorandum, AFPC/DPSOR, dated 17 Mar 15. Exhibit D.  Letter, SAF/MRBR, dated 6 Jul 15. Exhibit E.  Letter, SAFPC, dated Exhibit F.  Letter, SAF/MRBC, dated 1 Dec 15.