RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2016-00719
		
						COUNSEL:  NONE

						HEARING DESIRED:  NOT INDICATED

APPLICANT REQUESTS THAT:

His grade of Master Sergeant (MSgt, E-7) be reinstated.

He be retired in the grade of MSgt, instead of Technical Sergeant (TSgt, E-6).  

APPLICANT CONTENDS THAT:

On 5 and 25 September 2006, he was subjected to a urinalysis and both times he tested positive for marijuana use.  This was due to a single lapse in judgment in a 30 year career.  The use of the substance was wrong.   

He was given a Letter of Reprimand (LOR) through the mail and was not given an opportunity to appear in person.  He could only send his response through the mail months after the incident.  The LOR dated 29 June 2007 was issued four months before his retirement and was sufficient punishment for a single lapse in judgement in an otherwise sterling career that spanned 30 years of service in three branches.  The reduction in grade is paramount to double jeopardy since he was already punished via the LOR.  He performed all duties in the grade of MSgt for years prior to the incident.  

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

STATEMENT OF FACTS:

The applicant was placed on the Retired List in the grade of TSgt effective 28 May 2012 (date of birth: 28 May 1952).  

On 29 January 2007, the applicant received a LOR for wrongful use of marijuana on or about August to September 2006, in violation of the Uniform Code of Military Justice (UCMJ), Article 112a.  

On 29 January 2007, the Readiness Management Group Commander (RMG/CC) recommended to the Air Force Reserve Command Vice Commander (AFRC/CV) the applicant be administratively discharged in accordance with AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 3.21.3.2 for drug use with an Under Other than Honorable (UOTHC) discharge.  

On 22 February 2007, the RMG/CC notified the applicant that due to his projected High Year Tenure (HYT) separation/retirement date of 2 May 2007, a Highest Grade Held (HGH) determination was required in accordance with AFI 36-3209, paragraph 5.14.8.  The specific reason for the HGH determination was the applicant’s wrongful use of a controlled substance.  

On 26 April 2007, the Secretary of the Air Force Personnel Council (SAFPC) determined the applicant did not serve satisfactorily in the grade of MSgt and ordered he be transferred to the Retired Reserve in the lower grade of TSgt.  

Reserve Order Number EK-1658 dated 20 December 2007 amended Reserve Order EK 1497 dated 18 December 2006 to reflect his pay grade at age 60 as TSgt.  

Per Reserve Order Number EL-4573 dated 24 July 2012, the applicant was placed on the Air Force Retired List, Retired Reserve Section, effective 28 May 2012, with entitlement to retired pay per 10 U.S.C. § 12731 in the grade of TSgt.

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

AIR FORCE EVALUATION:

SAF/MRBP recommends a separate legal advisory opinion be obtained regarding the details of the case.   This case is not an Enlisted Grade Determination (EGD) due to medical separation or an Advancement on the Retired List (ARL) as the applicant does not fit the ARL criteria.   
 
A complete copy of the SAF/MRBP evaluation is at Exhibit C.

BCMR Legal Advisor recommends approval.  The applicant was improperly reduced in grade through a Highest Grade Held Determination (HHG) which was not authorized by law or regulation.  

On 5 September 2006, the applicant provided a urine sample which came back positive indicating marijuana use, which he denied.  On 25 September 2006, he provided another urine sample which also came back positive indicating marijuana use.  This time, he admitted to taking several “hits” of marijuana on one occasion.  The applicant received an LOR on 29 January 2007.  With regards to his reduction in grade, there is no record of an administrative demotion, nonjudicial punishment (NJP) or court-martial which would have been the only avenues to reduce his grade for his misconduct.  While any three of these avenues would have been appropriate actions to take for the misconduct involving drug use, his command did not take any of these actions.

On 29 January 2007, his commander issued an LOR and recommended he be discharged in accordance with AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, paragraph 3.21.3.2 (drug abuse).  He did not request a personal appearance or any further opportunity to confront his accusers.  Further, it would be unusual to conduct a personal appearance under these circumstances as it is not a part of the procedural process for administering LORs.  

On 22 February 2007, the RMG/CC issued a notification memorandum to the applicant stating a HGH determination was required by AFI 36-3209.  The notification memorandum cited the applicant’s use of a controlled substance as detected by two separate urinalysis tests as the reason for the HGH determination.  On 6 March 2007, the applicant acknowledged receipt of the HGH and indicated he would provide a response.  On 30 March 2007, AFRC/JA found the HGH case file legally sufficient.  On 26 April 2007, the Secretary of the Air Force Personnel Council (SAFPC) heard the case and the Secretarial Instrument was signed which indicated the applicant had not served satisfactorily in the grade of MSgt and ordered he be transferred into the Retired Reserve in the lower grade of TSgt.  

The applicant has been the victim of an injustice.  There is a distinct difference in grade determinations for officers and enlisted members and the applicant erroneously had the officer rule applied to him to his detriment.  Officers cannot be reduced in grade prior to retirement, whereas enlisted members can.  As a result, grade determinations for an officer can result in lowering an officer’s grade at retirement because there was no mechanism to reduce them to a lower grade while they were serving.  This is a Secretarial action in accordance with 10 U.S.C. §§ 1370 and 12771 and AFIs 36-3203, Service Retirements, and 36-3209.  On the other hand, enlisted members can lose their grade and earn it back throughout their career.  As such, when an enlisted grade determination is done, there is always some underlying previously lost grade that is reviewed to determine the HGH satisfactorily while serving.  In such cases, the enlisted member could either retire at their current lower grade or be retired in a higher grade previously held as determined by the Secretary.  In this case, the applicant was erroneously notified that AFI 36-3209, paragraph 5.14.8 required a HGH determination.  Paragraph 5.14.8 states the following: Enlisted Retired Grades.  Enlisted Reservists who retire, other than for physical disability, retire in their current grade.  A determination of HGH satisfactorily is required on all members who apply for transfer to the Retired Reserve.  HQ ARPC has been delegated this authority from the SecAF.  The SecAF is required to approve any grade lower than the HGH.  This paragraph of the AFI was poorly drafted and led the readers to improperly effectuate a HGH determination when it was not authorized by law.

This error was likely missed at all levels of review because of the time constraints and rush to complete the action.  The first sentence of paragraph 5.14.8 makes it clear that the applicant should have been retired in his grade of MSgt because his retirement was not the result of physical disability.  This is supported by 10 U.S.C. § 8961(b).  Nevertheless, the second sentence in paragraph 5.14.8 muddied the water by stating that all members applying for transfer to the Retired Reserve require an HGH determination, when in fact, this sentence is actually referring to members retiring for physical disability.  Even then, for an enlisted member, an HGH determination is a mechanism to restore grade to an individual, not take it away.  In summary, paragraph 5.14.8 retires an enlisted person in their current grade or provides a mechanism for the SecAF to retire the member in a higher grade if they had previously been reduced in grade.  The provision provides a benefit to the member and is not to be used as a punitive tool.  If the command desired to reduce the applicant in grade prior to his retirement, the proper mechanism to do so in this case would have been an administrative demotion which they did not do.  Instead they applied rules for officer grade determinations to the applicant.  

A complete copy of the BCMR Legal Advisor’s evaluation, with attachments, is at Exhibit D.  

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 13 December 2016 for review and comment within 30 days (Exhibit E).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

AF/JAA concurs with the recommendation of the BCMR Legal Advisor’s analysis.   The HGH satisfactorily process in the applicant’s case was erroneous and the process should not have been used to reduce his grade at the time of retirement.  

On 22 February 2007, the RMG/CC signed a memorandum notifying the applicant due to his projected 1 May 2007 retirement, she was initiating a HGH determination pursuant to AFI 36-3209, paragraph 5.14.8.   

On 26 April 2007, the Director of SAFPC, on behalf of the SecAF, found the applicant did not serve satisfactorily in the grade of MSgt and ordered he be transferred to the Retired Reserve in the lower grade of TSgt effective 1 May 2007.

The question is whether a retiring Reserve enlisted member can be retired at a grade lower than their current grade after a determination of HGH satisfactorily is made pursuant to AFI 36-3209, paragraph 5.14.8.  The answer to that question is “No.”  Per 10 U.S.C. § 8961(b), a Regular or Reserve of the Air Force enlisted member who retires other than for physical disability retires in the Regular or Reserve grade that he holds on the date of retirement.  At the time of the applicant’s retirement, AFI 36-3209, paragraph 5.14.8, implemented the statutory provision as follows: Enlisted Retired Grades. Enlisted reservists who retire, other than for physical disability, retire in their current grade. A determination of HGH satisfactorily is required for all members who apply for transfer to the Retired Reserve if at retirement they hold a grade lower than one previously held.   The SecAF is required to approve any grade lower than the HGH.  The phrase “highest grade held satisfactorily” is a creature of statute and 10 U.S.C. § 8963 explains: A Reserve enlisted member of the Air Force described in subsection (b) who is retiring under § 8914 shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily, as determined by the SecAF.  This section applies to a Reserve enlisted member who (1) at the time of retirement is serving on active duty, in a grade lower than the highest enlisted grade held by the member while on active duty and; (2) was previously administratively reduced in grade, as determined by the SecAF.  It should be noted § 8963 does not provide for an enlisted member’s retired grade to be reduced for misconduct.  Rather 10 U.S.C. § 8963 insures to the benefit of an enlisted member who has retired at a grade lower than the highest held during their enlistment by authorizing a process to allow that member to be restored to the higher grade.

This differs from officer retirements for which an officer grade determination (OGD) in conjunction with retirement can be a prerequisite to retiring at the highest officer grade held.  An officer is not automatically entitled to retire in the HGH.  Instead, an officer is retired in the highest grade served on active duty satisfactorily or creditable service for Reserve members retiring under § 12731 per AFI 36-3203, Service Retirements, paragraph 7.6.  

There were various options to reduce the applicant to the grade of TSgt prior to his retirement or to have prevented him from retiring in the grade of MSgt.  His command could have preferred charges under Article 112a or pursued NJP.  The command could have continued to pursue the administrative discharge process it began on 29 January 2007, which appears was abandoned.  At the time, they also had an option to administratively demote the applicant to the grade of TSgt in accordance with AFI 36-2502, Enlisted Airman Promotion/Demotion Programs.  However, his command did not pursue any of these mechanisms in 2007.  Rather the command initiated the HGH process to reduce the applicant’s grade at the time of his retirement. Initiating the HGH process to administratively demote the applicant was an improper use of the authority.  At the time of his retirement, Air Force officials read the language of AFI 36-3209, paragraph 5.14.8 to provide authority to reduce his grade at retirement; however, that reading was erroneous.  It was inconsistent with statutory authority for the HGH process as laid out in 10 U.S.C. § 8963.  As noted, § 8963 authorizes the HGH process to raise, not lower a retired enlisted member’s grade and to do so for situations not involving misconduct.  There is no other statutory or administrative authority to use the HGH process to lower a retired member’s grade at the time of retirement.  

Absent any appropriate grade reduction process, the applicant would have been in the grade of MSgt on his retirement date (1 May 2007).  By statute, 10 U.S.C § 8961 and implementing instruction, AFI 36-3209, paragraph 5.14.8 and AFI 36-3203, paragraph 8.9.6, he should have retired at his current grade.    

A complete copy of the AF/JAA evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 17 August 2017 for review and comment within 30 days (Exhibit G).  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.  Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case and agree with the opinions and recommendations of the BCMR Legal Advisor and AF/JAA and adopt the rationale expressed as the basis for our conclusion the applicant has been the victim of an error or injustice.  Therefore, we recommend the applicant's records be corrected as indicated below.	

4.  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 issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD RECOMMENDS THAT:

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

      a. The Secretary of the Air Force Personnel Council (SAFPC) Action Memorandum dated 26 April 2007, which determined he did not serve satisfactorily in his current grade of Master Sergeant (MSgt) and ordered he be transferred to the Retired Reserve in the lower grade of Technical Sergeant (TSgt) is void and removed from his records.

      b. His Reserve Order Number EK-1658 dated 20 December 2007, which amended Reserve Order Number EK-1497 dated 18 December 2006, directing his grade at age 60 be TSgt, instead of MSgt, is void and removed from his records.  
		
      c. His Reserve Order Number EL-4573, dated 24 July 2012, which placed him on the Air Force Retired List effective 28 May 2012 be corrected to show his grade of Master Sergeant (MSgt, E-7), instead of the grade of Technical Sergeant (TSgt, E-6).    

The following members of the Board considered AFBCMR Docket Number BC-2016-00719 in Executive Session on 2 May and 20 September 2017 under the provisions of AFI 36-2603:

	, Panel Chair
, Member
	, Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00719 was considered:

	Exhibit A.  DD Form 149, dated 18 February 2016, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, SAF/MRBP, undated.
	Exhibit D.  Memorandum, BCMR legal, dated 12 December 2016,
			  w/atchs.  
	Exhibit E.  Letter, AFBCMR, dated 13 December 2016.  
	Exhibit F.  Memorandum, AF/JAA, dated 8 August 2017.  
	Exhibit G.  Letter, AFBCMR, dated 17 August 2017.  

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.