ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-03407 INDEX CODE: 131.00 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His records be corrected to reflect that he retired in the grade of master sergeant (MSgt) effective 31 July 2008. ________________________________________________________________ STATEMENT OF FACTS: On 24 July 2008, the Board considered and denied a similar request. For an accounting of the facts and circumstances surrounding the applicant’s request, and, the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit G. On, 22 January 2009, the applicant requested reconsideration. He states that no competent authority recognizes his unique circumstances under sanctuary protection to correctly award him the highest rank held in accordance with (IAW) Title 10, United States Code (USC), Section 8963. The applicant’s complete submission, with attachments, is at Exhibit H. _________________________________________________________________ AIR FORCE EVALUATION: SAFPC recommends the applicant be advanced to the grade of MSgt at the point he reaches 30 years. SAFPC states the applicant was a member of the Air Force Reserve (AFR) on active duty mobilization orders and requested active duty sanctuary. On 3 September 2006 he was ordered to extended active-duty as a technical sergeant (TSgt) with a date of separation (DOS) of 31 July 2008. Although the applicant was on active duty, being paid out of military personnel appropriation (MPA) funds and eligible for active-duty programs, he was still a member of the AFR and accounted for in the AFR’s end strength. Even though the applicant only served four days of “active duty” as a MSgt while assigned as a Reservist in an active Reserve status, his period of active Reserve service in the grade of MSgt is from 1 July 1996 to 2 April 1997. When the applicant returned to active Reserve status on 30 June 2003, his demotion to TSgt was not as a result of his misconduct rather due to there not being a vacant MSgt position available. Since there is no evidence of misconduct in the applicant’s record as a MSgt, the applicant should be advanced to the grade of MSgt when he reaches 30 years of total federal military service (17 December 2013) based on his pay date of 17 December 1983. The complete SAFPC evaluation is at Exhibit I. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disagrees with the Air Force evaluation and states he was an active-duty accession as outlined in the AFI. He states that unrelated sections of the law in reference to his situation are being mixed up. Section 8963, refers directly to Section 8914, under which he was retired. The other is Section 8964, which is a separate section dealing with circumstances not applicable to his situation. He is being asked to postpone his rightful retirement grade until 2013 because of a misunderstanding of his unique situation and the governing laws. He separated and reenlisted in the Reserves voluntarily at one grade below his previous grade. He fulfilled his active-duty obligation and immediately upon his retirement his grade determination should have been the highest rank held. The applicant’s complete response, with attachments, is attached at Exhibit K. ________________________________________________________________ _ ADDITIONAL AIR FORCE EVALUATION: SAFPC now recommends approval. SAFPC states that AFPC/DPPR advised AFPC/JA that paragraph 5.30.5 of AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members is no longer valid and it has been DPPR’s practice to ignore the current published provision. Therefore, Section 8963 should take priority over the outdated AFPC policy. Section 8963 does not state a minimum amount of time required in the higher grade while serving on active duty. SAFPC states the applicant’s time served as an MSgt is considered satisfactory for the purpose of retirement in the higher grade. The complete SAFPC evaluation is at Exhibit L. ________________________________________________________________ _ THE BOARD CONCLUDES THAT: After again reviewing this application and the evidence provided in support of his appeal, we believe that sufficient relevant evidence has been presented to demonstrate the existence of an error and injustice. In this respect, we note that Section 8963, Title 10 USC, allows members to retire in the highest grade in which they served on active duty satisfactorily as determined by the Secretary of the Air Force. The Secretary of the Air Force has delegated this authority to the Secretary of the Air Force Personnel Council (SAFPC). SAFPC has determined that AFI 36-3209, which requires six months time in grade to retire in the higher grade is no longer valid and therefore, Section 8963 should take priority over the outdated policy. Further, SAFPC determined the applicant served satisfactorily on active duty in the grade of MSgt and should be retired in that grade. In view of the above, it is our opinion that corrective action is warranted in this case. Therefore, we recommend the applicant's records be corrected to the extent indicated below. __________________________________________________________________ THE BOARD RECOMMENDS: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was promoted to the grade of master sergeant (E-7) effective and with a date of rank of 1 August 2008. ________________________________________________________________ _ The following members of the Board considered AFBCMR Docket Number BC-2008-03407 in Executive Session on 7 July 2010, under the provisions of AFI 36-2603: The Board voted to correct the record as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-03407 was considered: Exhibit G. Record of Proceedings, dated 3 October 2008, with exhibits A through F. Exhibit H. DD Form 149, dated 22 January 2009, w/atchs. Exhibit I. Letter, SAF/MRBP, dated 2 September 2009. Exhibit J. Letter, AFBCMR, dated 5 October 2009. Exhibit K. Letter, Applicant, 30 October 2009, w/atchs Exhibit L. Letter, SAF/MRBP, dated 21 June 2009.