RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04556

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be promoted to the grade of Chief Master Sergeant (CMSgt,        E-9).

His record be amended to reflect his humanitarian deferment assignment request was approved.

He received a waiver of his Active Duty Service Commitment (ADSC) for promotion to the grade of CMSgt to six months.

He was retired in the grade of CMSgt based on the ADSC waiver.  

APPLICANT CONTENDS THAT:

He was selected for promotion to the grade of CMSgt during Cycle 99E9 with Promotion Sequence Number (PSN) 350.  He should be promoted to the grade of CMSgt pursuant to 10 U.S.C. § 8964 and 1552, AFI 36-3208, Administrative Separation of Airmen, and AFI 36-3203, Service Retirements.  He was also reassigned duties as the Chief Enlisted Manager (CEM) for the 20th Bomb Squadron, Barksdale AFB, LA for over six months.  

It was an injustice that his humanitarian assignment deferment application was disapproved and he had to retire in the grade of Senior Master Sergeant (SMSgt, E-8) due to family constraints.  He should have received advice during this period but was cast aside.  Since his retirement, he has felt as if he was demoted.  Once moved into the CEM position, an unofficial promotion was received and he was called “Chief” although he did not receive credit for the unofficial promotion.  

He does not contend to have a negative performance report or personnel action that caused him not to be promoted to the grade of CMSgt.  During the time of his promotion selection, he and his wife were raising three daughters and he was also responsible for the care of his mother.  They provided over $850 per month and traveled to visit her (three hours one way) while she was ill with renal failure and congestive heart disease.  Her dementia was also progressing and she had become incontinent.  She was at the point of needing around the clock care.  Upon receiving notice of his selection for an overseas assignment, he contacted the Chiefs’ Group to request a humanitarian assignment deferment and hurriedly submitted a weak package which was denied.   

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

STATEMENT OF FACTS:

The applicant retired on 1 December 2000 in the grade of SMSgt.    He was credited with 20 years, 2 months and 11 days of active duty service.  

The applicant provides BC-98-02216 and BC-2000-03414 as precedence to support his requests.  In BC-98-02216, the Board granted the applicant’s request to be retired in the highest grade held of Master Sergeant (MSgt, E-7).  The Board determined that while the applicant was demoted to the grade of Technical Sergeant (TSgt, E-6) for failure to maintain weight standards, it was unjust to not allow him to retire in the grade of MSgt since he served honorably in the grade for two years.  In BC-2000-03414, the applicant’s promotion to the grade of SMSgt scheduled to consummate on 1 May 1998 was canceled on 15 April 1998 when he received a referral Enlisted Performance Report (EPR).  In the applicant’s initial request, the Board granted the applicant a disability retirement but denied removal of the referral EPR and promotion and retirement in the grade of SMSgt.  The applicant appealed to the Board for reconsideration of his request to be promoted and retired in the grade of SMSgt.  Given the physical disability for which he was retired, the Board found it was not unreasonable to presume he would have been promoted had it not been for the physical disability for which he was retired.   

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D and E.    

AIR FORCE EVALUATION:

AFPC Enlisted Promotions recommends denial for promotion to the grade of CMSgt during Cycle 99E9 as he did not have sufficient retainability to meet the required three year ADSC due to his voluntary retirement.

The applicant was considered and tentatively selected for promotion to the grade of CMSgt during Cycle 99E9.  He received PSN 350 which incremented on 1 October 2000.  However, when the applicant applied and was approved for retirement effective 1 December 2000, his PSN was removed in accordance with AFI 36-2502, Enlisted Promotions, which states the airman is ineligible for promotion during a particular cycle when he/she applies for voluntary retirement after promotion selection notification, and as a result of approved retirement does not have sufficient retainability to meet the required ADSC.  

A complete copy of the AFPC Enlisted Promotions evaluation is at Exhibit C.

AFPC/JA recommends denial.  The applicant was not actually promoted to the grade of CMSgt despite the fact he was performing CEM duties, was called “Chief” and received gifts and certificates referencing him as “Chief” or “CMSgt.”  He was selected for promotion but applied for retirement prior to actually achieving the grade.  When he applied for retirement, his assignment was canceled and he did not retain sufficient retainability to be promoted to the grade of CMSgt.  In this case, because the applicant retired before achieving the grade of CMSgt, the provision in 10 U.S.C. § 8964(a) does not apply.  

There is also no evidence the denial of his humanitarian deferment request was unjust.  Despite the unfortunate circumstances surrounding the timing of his overseas assignment and his mother’s illness, the applicant states he made the request “hurriedly” and it was a “weak” package.  Therefore there is no evidence in the applicant’s record or submitted by the applicant which shows the decision to deny the request was unjust.  Certainly, the collateral consequences of the denial ultimately worked to the detriment of the applicant; however, the denial of the deferment was not unjust.

Even if there was some evidence of injustice, the fact that the applicant waited for over 15 years would be basis against granting the request on the basis of laches.  The applicant does not provide a persuasive argument as to why the Board should excuse his delay in requesting relief, he simply notes he came across 10 U.S.C. § 8964 while doing research for one of his clients (presumably in his current civilian job) and wondered whether it would apply.  Moreover, promoting him or giving him a humanitarian deferment at this point would be logistically problematic as he has been retired for 15 years.  Due to the passage of time, it is unlikely that a practical resolution can be found to remedy an injustice, even if it existed.  

A complete copy of the AFPC/JA evaluation, is at Exhibit D.

AFPC/DP2LWA states they do not have the original case that was submitted by the applicant as N1-AFU-88-22, Records Disposition Schedule, requires case files of applications for humanitarian/Exceptional Family Member Program (EFMP) to be destroyed two years after disapproval.

Based on the medical information provided, the applicant’s mother suffered from multiple chronic medical conditions which are not approvable under the humanitarian reassignment program.  The program was established to assist members in resolving severe short-term problems involving a family member.  In this case, the medical conditions his mother had required ongoing medical care with no certain life expectancy, at least no life expectancy that was identified in his application.

Nevertheless, considering the case file is not available and it cannot be validated whether or not a medical doctor diagnosed the applicant’s mother’s condition as terminal, DP2LWA is willing to give him the benefit of doubt.  DP2LWA will approve the request should the applicant provide a death certificate showing she passed within 24 months of his humanitarian assignment application (any time prior to 31 December 2002).  If she is still alive or passed on 1 January 2003 or later, his request is disapproved.  

A complete copy of the AFPC/DP2LWA evaluation is at Exhibit E.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 15 November 2016 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.

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 to warrant granting any of the requested relief.   Having carefully reviewed the complete submission, we find no evidence of an error or injustice to warrant granting the applicant’s requests that his records be corrected to reflect he was promoted to the grade of CMSgt, received an ADSC waiver to permit retirement in the grade of CMSgt and was retired in the grade of CMSgt.  In this regard, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt the rationale expressed as our conclusion that the applicant has not sustained the burden of proof that he was the victim of an error or injustice.   With respect to the applicant’s request that his records be corrected to reflect he received a humanitarian assignment deferment, we note AFPC/DP2LWA states they no longer have the applicant’s case on file but would be willing to re-evaluate the request should he provide a death certificate showing his mother passed any time prior to 31 December 2002 (within 24 months of the humanitarian deferment assignment request).  It has been more than 16 years since the applicant’s retirement in the grade of SMSgt and we find no reason at this time to reconsider the humanitarian assignment deferment application given the insufficient evidence to warrant promotion and retirement in the grade of CMSgt.  Furthermore, it appears the applicant’s mother suffered from a myriad of chronic health issues which are not approved under the humanitarian assignment program and by his own admission, he submitted a “weak” application.  Therefore, the request for a humanitarian deferment is denied.  The applicant also cites BC-98-02216 and BC-2000-03414 as precedence to grant his requests.  However, we disagree.  Every case before this Board is considered on its own merit since the circumstances of each case are seldom identical.  After a careful review of the cases provided, we find them distinguishable from the applicant’s request as none of the cases are comparable.   In view of the above, and in the absence of evidence to the contrary, we find no basis to recommend granting any of the requested relief.

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-2015-04556 in Executive Session on 26 January 2017 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04556 was considered:

	Exhibit A.  DD Form 149, dated 22 October 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC Enlisted Promotions, 
  dated 2 March 2016.
     Exhibit D.  Memorandum, AFPC/JA, dated 19 April 2016.
	Exhibit E.  Memorandum, AFPC/DP2LWA, dated 14 September 2016
	Exhibit F.  Letter, AFBCMR, dated 15 November 2016.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter concerning BC-2015-04556.