RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04134 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: He be advanced on the Retired List to grade of Master Sergeant (MSgt, E-7). ________________________________________________________________ APPLICANT CONTENDS THAT: He was demoted from the grade of MSgt to the grade of Technical Sergeant (TSgt, E-6) due to false assault charges brought against him. These charges were dropped and he was acquitted in court. In support of his request, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, certificates, citations and various other documents related to his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 30 Apr 1979, the applicant entered the Regular Air Force and was progressively promoted to the grade of MSgt. On 5 Jul 2001, the applicant received an Article 15 for assault. His punishment consisted of a reduction to the grade of TSgt with a date of rank of 5 Jul 2001. On 1 Oct 2001, the Secretary of the Air Force determined he did not serve satisfactorily in any higher grade and he would not be advanced under the provisions of 10 USC § 8964. On 29 Nov 2001, he was issued Special Order AC-004967, reflects he retired in the grade of TSgt effective 1 Dec 2001. He served 22 years, 6 months, and 28 days of total active service. ________________________________________________________________ ? AIR FORCE EVALUATION: AFPC/DPSOE recommends denial. DPSOE states that the applicant contends the charges against him were dropped and he was acquitted; however, he provides no documentation to support his contention. The complete DPSOE evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In further support of his request the applicant provides a copy of a court report reflecting the charges against him were withdrawn. The applicant’s complete submission, with attachments, is at Exhibit E. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION The Legal Advisor states that he cannot make a recommendation on the merits. The alleged assault in Jan 2000 seems unlikely as a basis for an Article 15 offered in Jul 2001, especially since according to the applicant the assault charge was dropped less than a week after the applicant was charged. Why would a commander offer Artic1e 15 punishment in Jul 2001 for an incident that had already been dropped 18 months before? Inevitably, the BCMR Legal Advisor wonders whether the Article 15 and hence the demotion was based on a later incident unrelated to the dropped charges from Canada. Of course, lacking answers to these questions, he cannot make a recommendation on the merits and urges the Board to obtain clarification on these questions before voting on the case. The complete BCMR Legal Advisory is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The only proof he has regarding his innocence are the documents he obtained from the Canadian Courts. The case was dismissed and never went to court. His commander at that time told his attorney that if it were up to him he would throw him in jail and throw away the keys. Numerous months passed and another commander was assigned who initiated Article 15 punishment. He regrets any embarrassment or shame he brought to his unit and his country, but he is not guilty of any crime. The applicant’s complete submission is at Exhibit H. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION SAF/MRBP recommends approval. MRBP states that in accordance with 10 USC § 8964 an active duty enlisted member who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily. The Secretary has the authority to establish regulations to determine "satisfactory" service. In accordance with AFI 36- 3203, Service Retirements, Paragraph 7.4.2 SAFPC announces the SAF decision "when the highest grade held was terminated for cause (unless member held the higher grade for at least 6 months during a previous period of service and received an honorable discharge in the higher grade)." This language has been interpreted by AFPC/JA to mean 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. Part of the rationale for this interpretation is that a determination that the member did not serve satisfactorily would be contrary to the honorable discharge the member received in the higher grade. The complete MRBP advisory is at Exhibit I. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: On 24 Mar 2014, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit J). ________________________________________________________________ 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 warranting relief. After carefully reviewing this application, we agree with the opinion and recommendation of SAF/MRBP and adopt the rationale expressed as the basis for our decision that the applicant has been the victim of either an error or injustice. Therefore, in the interest of equity and justice, we recommend the applicant’s records be corrected to show that he was advanced to the grade of MSgt on the United States Air Force Retired List by reason of completing 30 years service. Accordingly, we recommend his records be corrected as set forth below. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that on 30 Apr 2009, he was advanced to the grade of Master Sergeant on the United States Air Force Retired List by reason of completing 30 years service, under Title 10, United States Code, §8964. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 24 Apr 2014, under the provisions of AFI 36-2603: , Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC-2012- 04134: Exhibit A. DD Form 149, dated 7 Sep 2012, w/atchs. Exhibit B. Applicant’s Master personnel Records. Exhibit C. Letter, AFPC/DPSOE, dated 16 Nov 2012. Exhibit D. Letter, SAF/MRBR, dated 14 Dec 2012. Exhibit E. Letter, Applicant, dated 15 Jan 2013, w/atchs. Exhibit F. Letter, SAF/MRB Legal Advisory, dated 7 Nov 2013. Exhibit G. Letter, SAF/MRBC, dated 7 Nov 2013. Exhibit H. E-mail, Applicant, dated 12 Nov 2013. Exhibit I. Letter, SAF/MRBP, dated 28 Feb 2014. Exhibit J. Letter, SAF/MRBR, dated 24 Mar 2014.