RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05366 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: She be advanced on the Retired List to the highest grade she held, Chief Master Sergeant (CMSgt, E-9). ________________________________________________________________ APPLICANT CONTENDS THAT: She received an Article 15 demoting her to the rank of Senior Master Sergeant (SMSgt, E-8); however she had already successfully served over 3 years in the rank of CMSgt at the time of the incident and qualified for the retirement in the grade of CMSgt. Her Date of Rank (DOR) to CMSgt was 1 Feb 2006. At the time of the incident on 9 Aug 2009, she was on terminal leave with an approved retirement date of 1 Oct 2009. She had 27 years of active duty service. In support of her request, the applicant provides a personal statement, photographs and various other documents associated with her request. Her complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Regular Air Force on 7 Sep 1982 and was progressively promoted to the grade of CMSgt, effective 1 Feb 2006. On 22 Dec 2008, the applicant was issued Special Order AC- 002320, in which she would be retired in the grade of CMSgt effective 1 Nov 2009. On 12 Jan, 2010, she was issued Special Order AC-002783, in which she would be retired in the grade of SMSgt effective 1 Feb 2010. On 31 Jan 2010, she retired in the grade of SMSgt effective 1 Feb 2010. She served 27 years, 4 months, and 24 days of total active service. On 9 Apr 2010, the Secretary of the Air Force determined she would not be advanced to the higher grade of CMSgt when her time on active duty and her time on the retired list totaled 30 years (10 USC § 8964). On 7 Sep 2012, the applicant’s time on active duty and her time on the retired list totaled 30 years. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. DPSOR states that the applicant was not allowed to retire in the rank of CMSgt due to an Article 15 demoting her to the rank of SMSgt. Based on the documentation she provided in 2010, on 9 Aug 2010, the Secretary of the Air Force Personnel Council (SAFPC) found that she did not serve satisfactorily in the higher grade of CMSgt and that she would not be advanced under the provisions of 10 USC § 8964. The complete DPSOR evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Counsel states that the applicant has in fact served honorably for the requisite 3 years in the rank of CMSgt under 10 USC § 8964. She was a CMSgt in the Air Force and had approximately 27 years of active duty service. She served in the rank of CMSgt from 1 Feb 2006 and served honorably until 9 Aug 2009, wherein she was allegedly involved in an altercation resulting in Article 15 action against her. The altercation occurred while she was already on terminal leave for retirement. At the time, she had an approved retirement date of l Oct 2009. Despite maintaining her innocence as to any wrong-doing throughout and her role as the victim of that altercation, she chose to accept her lawyer’s advice to accept the Article 15 and on 4 Dec 2009, she was demoted to the rank of SMSgt. She was given the Article 15 and reduced in rank despite having more credible evidence on her side as to the facts and circumstances of the altercation. Her reduction resulted in a sizable loss in retirement pay that far exceeds any punishment rationale for her defending herself in 2009 against an unprovoked attack. Retirement pay at the rank of SMSgt for 20 years results in an approximate loss of $140,000. Counsel further asserts the advisory opinion is in error and contains matters inapplicable to the applicant. AFPC/DPSOR correctly states the requested action and basis for request. However, the factual portion and the comments listed in the recommendation portion appear to be in error and, in one instance, contains information that does not pertain to the applicant. DPSOR states the applicant did not serve satisfactorily in the higher grade of CMSgt and that she should not be advanced. This is in error given she served in the rank of CMSgt from 1 Feb 2006 until 9 Aug 2009, which is well in excess of three years required to serve satisfactorily. Furthermore, DPSOR states "the member provided SAF/PC with documentation in 2010, SAF/PC did not grant her the advancement." This is in error because prior to the application to the AFBCMR, she had in fact not provided any documentation regarding her request for restoration of rank. She would not have been eligible to seek such restoration until she reached 30 years of service which would have been in Sep 2012. There would be no reason to submit paperwork in 2010 seeking correction of her rank since she was not eligible for rank restoration until 2012. The advisory opinion appears to contain partial misinformation and incorrectly concludes that the applicant is not eligible for advancement on the retirement list and this conclusion is in error. The language of 10 USC § 8964 favors the applicant’s claim. From the plain language of the statute, she is eligible for advancement on the retired list to the highest grade on active duty served satisfactorily. Her active duty time and her time on the retired list has now reached 30 years and she is eligible to seek and attain her previous rank back for retirement purposes and she respectfully requests restoration to the rank of CMSgt. She served honorably for 27 years and had one blemish on an otherwise spotless career, for an incident where she accepted non-judicial punishment rather than risk anything else so that she would not jeopardize her retirement in her later years. Given her medical injuries and physical condition, as stated in her submission, this was a valid concern and she chose the lesser of two evils. However, the repercussions from this non-judicial punishment have now far exceeded any bounds of fairness or equity. To lose permanently her retirement pay at her highest enlisted grade is an insult for a woman who served proudly and with distinction. Counsel’s complete submission, with attachments, is at Exhibit E. ________________________________________________________________ ? THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. The applicant is requesting that the determination of the Secretary of the Air that she did not serve satisfactorily in the grade of CMSgt be reversed contending that she served honorably for the requisite three years in the rank of CMSgt under 10 USC § 8964 and that the altercation occurred while she was already on terminal leave. After careful consideration of the evidence of record, it is our opinion that the applicant has failed to sustain her burden of proof of the existence of an error or injustice warranting corrective action. In this respect, in rendering a highest grade satisfactorily held determination, the challenge of the Personnel Council was to determine whether the applicant displayed her capability and willingness to competently discharge the responsibilities of the higher grade in a sustained manner and adhered to the necessarily high standards of Air Force conduct in a consistent manner within a reasonable time period while wearing the rank under review. Although the applicant had over 3 years of time in grade when her misconduct occurred, the evidence reflects that her conduct was so egregious that it violated all standards of good order and discipline and violated basic tenants expected of all Air Force members. Therefore, we believe SAFPC’s decision not to advance the applicant to the higher grade of CMSgt was proper and in compliance with the provisions of the governing instructions, which implement the law. Accordingly, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as basis for our conclusion that the applicant has not been the victim of an error or injustice. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ ? THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 7 Nov 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-05366: Exhibit A. DD Form 149, dated 13 Nov 2012, w/atchs. Exhibit B. Applicant’s Master personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 8 Jul 2013, w/atch. Exhibit D. Letter, SAF/MRBR, dated 5 Aug 2013. Exhibit E. Letter, Counsel, dated 29 Aug 2013, w/atchs. Panel Chair 2 2