ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00874 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: He be advanced on the retirement list to the grade of senior master sergeant (E-8) or master sergeant (E-7). RESUME OF CASE: On 11 September 1997, the Secretary of the Air Force Personnel Council (SAFPC) determined the applicant did not serve satisfactorily in any grade higher than technical sergeant within the meaning of 10 U.S.C. §8964 and denied his advancement on the retired list. On 18 July 2012, the Board considered and denied the applicant’s original request to correct his records to reflect the highest grade held on active duty as E-8, and that he did not steal an automobile. In the original case, the applicant contended the quality of his service was superb prior to the inappropriate issues that gave rise to his court-martial. He admitted to making a horribly regrettable decision prior to leaving active duty. However, he learned from the incident and has contributed greatly to society since his retirement. AFLOA/JAJM indicated the applicant’s contentions were without merit. He entered a pretrial agreement to plead guilty in exchange for not receiving a bad conduct discharge (BCD), confinement that exceeded four months, or a reduction in rank below the grade of staff sergeant (E-5). In addition, the government agreed to allow the applicant to retire with an honorable discharge with full rights and benefits. The applicant did not provide any evidence that the court-martial conviction or sentence were the result of error or injustice and clemency was not warranted in this case. AFPC/DPSOR indicated the Board’s ability is limited when the correction requested is related to a court-martial. Also, the applicant should not be retired or advanced to any grade higher than E-6, since his grade was determined by the Secretary of the Air Force. Lastly, there is no reference in his military record to him having stolen an automobile. As a result, the Board determined it would not be in the interest of justice to grant the requested relief based on clemency. For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit F. By virtue of a DD Form 149, with attachments, the applicant requested reconsideration of the Board’s previous decision regarding his advancement on the retired list to the higher grade of E-8. If not advanced to E-8, than he should be advanced to the grade of E-7. He contends that he served honorably in the higher grade of at least E-7 and was an E-8 for twelve months. He found and submitted what he believes to be a case similar to his own on the Air Force Board for the Correction of Military Records (AFBCMR) website, which was approved. In the referred case, that applicant requested that he be advanced on the retired list to the grade of E-7. SAF/MRBP recommended approval indicating that a member who has held the higher grade for at least 6 months during a previous period of service and received an honorable discharge in the higher grade is to be advanced to that higher grade. As such, the applicant states he should be advanced to the highest grade held in which he served on active duty satisfactorily. The applicant’s complete submission, with attachments, is at Exhibit G. AIR FORCE EVALUATION: The SAFPC recommends approval of the applicant’s request to be advanced on the retirement list to the grade of E-7. The SAFPC advisory for the applicant’s initial request recommended disapproval of any rank higher than technical sergeant (E-6). The version of Air Force Instruction (AFI) 36-3203, Service Retirements, in effect at the time of the applicant’s original application in 2010 was dated 8 September 2006, which was later revised on 18 September 2015. The SAFPC advisories from September 2006 until July 2013 did not strictly construe the parenthetical language in paragraph 7.4.2.1., when deciding advancement cases. Specifically, a member who served honorably in a higher grade for at least six months in a previous enlistment term would not necessarily have been advanced to the higher grade. At the time, SAFPC took a “totality of the circumstances” approach in rendering its advancement decision. Beginning in July 2013, however, SAFPC’s understanding of the requirement changed, and SAFPC believed the AFI required strictly construing the parenthetical criteria of paragraph 7.4.2.1., in essence requiring that those members meeting the parenthetical criteria would be advanced to the higher grade absent the Secretary of the Air Force (SECAF) granting exception to policy. Only those cases where SAFPC decided not to advance the member, despite meeting the criteria, would be elevated to the Secretary. In this case, the applicant did in fact re-enlist in the higher grade before being demoted. His misconduct was not so egregious that a Secretarial exception to policy would have been sought. Based on the current understanding of the AFI in the effect at the time of the alleged error, the applicant’s request should be granted. A complete copy of the SAFPC evaluation is at Exhibit H. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant concurs with the SAFPC recommendation for his advancement on the retirement list to the grade of E-7. A complete copy of the applicant’s submission is at Exhibit J. THE BOARD CONCLUDES THAT: 1. In an earlier finding, the Board determined that there was insufficient evidence to warrant corrective action. However, sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice with respect to the applicant’s request for advancement on the retirement list to master sergeant, (E-7). In this respect, we note that Section 8964, of Title 10, United States Code, allows for a member to retire in the highest grade in which they served on active duty satisfactorily as determined by the Secretary of the Air Force. We note that SAFPC has indicated that their interpretation of the governing guidance has changed since their original review of the applicant’s BCMR request in 2010 and has determined the applicant did serve satisfactorily in the grade of master sergeant and should be advanced on the retired list in that grade. We agree with their assessment. Additionally, we confirmed that the governing guidance in effect when the applicant was first considered for advancement on the retired list in 1997 contains the same language as the 2006 version referenced by SAFPC. Since the applicant has indicated concurrence with the recommended relief, his request to be advanced to the grade of senior master sergeant is not appropriate. Therefore we recommend the applicant's records be corrected as indicated below. 2. 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 that on 18 December 2004, he was advanced to the grade of master sergeant (E-7) on the United States Air Force Retired List by reason of completing 30 years of service under Title 10, United States Code § 8964. The following members of the Board considered AFBCMR Docket Number BC-2010-00874 in Executive Session on 13 January 2016 under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit F. ROP, dated 27 July 2012, w/atchs. Exhibit G. DD Form 149, dated 14 November 2014, w/atchs. Exhibit H. Memorandum, SAF/MRBP, dated 2 December 2015. Exhibit I. Letter, AFBCMR, dated 7 December 2015. Exhibit J. Letter, Applicant, dated 4 January 2016.