RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04102 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His retired pay grade be changed from staff sergeant (E-5) to technical sergeant (E-6). _________________________________________________________________ APPLICANT CONTENDS THAT: He held the rank of technical sergeant for over 12 years. According to regulations, the fact he was promoted to a higher rank and held that rank for over (12 of years, he should be retired at the highest rank held. On 31 Oct 03, he retired from the United States Air Force as a technical sergeant after having served faithfully and honorably. He has been getting paid as a staff sergeant since his retirement. He was a technical sergeant for over 12 years of the 22 years he served in the Armed Forces. In support of his request, the applicant provides a personal statement, copies of his Retiree Account Statement, Retirement Certificate, certificates of training and awards, and personal data and point credit history printouts. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant served on active duty in the New Mexico Air National Guard (NMANG) for over 22 years. On 7 Feb 93, the applicant was promoted to the grade of technical sergeant. On 22 Jan 03, the applicant was reduced in grade from technical sergeant to staff sergeant, with a new date of rank of 21 Nov 02, as a result of an Article 15, due to government travel card (GTC) misuse. Specifically, between 11 Aug 02 and 10 Sep 02, he took cash advances on his GTC in the amount of $804.00 with service charges of $85.15 while not performing official government travel. This was the second instance of GTC misuse. The first event occurred when he was on temporary duty (TDY) to Nellis AFB, NV and took unauthorized cash advances of over $900.00 when the estimated authorized per diem for this TDY was $600.00. He received a Letter of Reprimand (LOR) for this misconduct. This misconduct was also used as a charge in the Article 15. Although the Article 15 cited two charges of misconduct for GTC abuse, only charge #2 (11 Aug – 10 Sep 02) should have been used for the basis for this action. In Nov 03, the applicant applied for retired pay requesting a retirement effective date of 1 Dec 03. He has been receiving retired pay in the grade of staff sergeant (E-5) since that date. The applicant was notified by the Air Reserve Personnel Center (ARPC) that due to the circumstances of his demotion from technical sergeant to staff sergeant on 22 Jan 03, they must obtain a determination of his highest grade satisfactorily held from the Secretary of the Air Force Personnel Council (SAFPC). Due to an administrative oversight, a grade determination was not accomplished at the time the applicant’s retirement was processed. Based on the applicant’s years of service his 30-year advancement date would be 3 Nov 13. _________________________________________________________________ AIR FORCE EVALUATION: HQ ARPC/DPT recommends denial. DPT states the applicant was involuntarily demoted for cause; therefore, he is not eligible for the grade of technical sergeant until 3 Nov 13, and then only upon approval by the Secretary of the Air Force. There is no regulation that requires a member who holds a higher grade for a specific number of years to be retired in that grade. Retired grades are determined by law, and not by regulation. Title 10, United States Code (USC), Section 8961, states an enlisted member retires in the grade held on the date of retirement unless entitled to a higher grade under another provision of law. If an enlisted member, with 20 or more years of active duty service is demoted for cause, his retired grade is determined by the SAF and is established in accordance with Title 10, USC, Section 8964. If the higher grade is approved, the member is advanced to the higher grade on the United States Air Force Retired List when his active duty service, plus service on the Retired List, totals 30 years. The complete DPT evaluation, with attachments, is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states he was not under the provisions of Title 10, USC, Section 8914; he was Title 32, which falls under the State. His commanding officer was also Title 32. An officer in Title 32 status may not discipline a member under the Uniform Code of Military Justice (UCMJ) regardless of whether the member is serving under Title 32 or Title 10. An officer in Title 10 status may not discipline a member in Title 32 status at the time the offense was committed. The same commander signed his retirement papers (AF Form 1160, Military Retirement Actions). Special Order AZ-108, dated 16 Jan 03, shows he was relieved from assignment with the 150th Aircraft Generation Squadron and honorably discharge from the New Mexico ANG effective 31 Oct 03, in the grade of technical sergeant, not staff sergeant. The applicant provides pages from an Air National Guard Commander’s Legal Deskbook, and documents pertaining to his Article 15, discharge documents, and a letter to the SAF. The applicant’s complete response, with attachments, is at Exhibit D. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The Director, SAFPC recommends approval of the applicant’s advancement on the retirement list in the grade of technical sergeant. The Director states although there are no performance evaluations in the applicant’s record, based on the evidence of record, the applicant’s GTC abuse was not so egregious as to not warrant advancement when he would reach 30 years of active service. The complete SAFPC evaluation is at Exhibit E. _________________________________________________________________ APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: The applicant states out of all the credit card abuse cases in his unit, he was the only one penalized. The other members got their GTC cancelled, and within a year all were promoted. No one was allowed to go TDY without a GTC, yet he traveled several times after his disciplinary action and continued to use his GTC without any problems or financial problems, and he was demoted for this. The applicant provides a credit card spreadsheet, travel forms and TDY information. The applicant’s complete response, with attachments, is at Exhibit G. _________________________________________________________________ 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 error or injustice. After reviewing the evidence of record, we are not persuaded that the applicant’s pay grade should be changed to technical sergeant retroactive to 1 December 2003. While the applicant states an officer in Title 32 status may not discipline a member under the Uniform Code of Military Justice (UCMJ), the evidence of record reflects his conduct was in violation of Article 92, UCMJ and section 20-12- 26, New Mexico State Code of Military Justice. The evidence also reflects that his nonjudicial punishment was reviewed by the staff judge advocate and determined legally sufficient. Therefore, we find no basis to grant the requested relief. Notwithstanding the above, we believe partial relief is warranted. 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. This authority has been delegated to SAFPC. We note that due to an administrative error, the Air Reserve Personnel Center did not forward the applicant’s records to SAFPC for consideration of his advancement on the retired list. SAFPC has reviewed this application, and determined the applicant served satisfactorily in the grade of technical sergeant and should be advanced on the retired list in the grade of technical sergeant when he reaches 30 years of active service. 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 THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that the Secretary of the Air Force determined he served satisfactorily in the higher grade of technical sergeant (E-6) within the meaning of Section 8964, Title 10, United States Code, and directs his advancement to that grade on the retired list effective the date of completion of all required service. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04102 in Executive Session on 9 Jun 11, under the provisions of AFI 36-2603: All members voted to correct the records, as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 27 Oct 10, w/atchs. Exhibit B. Letter, ARPC/DPT, dated 10 Dec 10, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 7 Jan 11. Exhibit D. Letter, Applicant, dated 7 Feb 11, w/atchs. Exhibit E. Letter, SAF/MRBP, dated 17 Feb 11. Exhibit F. Letter, AFBCMR, dated 18 Feb 11. Exhibit G. Letter, Applicant, dated 28 Feb 11, w/atchs.