RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2018-03042

XXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His paygrade be reinstated to master sergeant (E-7). 

APPLICANT’S CONTENTIONS

The offense he was charged with and convicted of did not warrant the loss of his stripe.  He wanted to go to trial, because he believed he was innocent, but instead he only did what his defense attorney instructed him to do.  Furthermore, in accordance with AFI 36-3203, Service Retirements, his active service plus his retired service totals more than 30 years and he should be advanced to the highest grade held on active duty.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force technical sergeant (E-6).  

On 1 May 92, as noted in Special Order P-075, the applicant was promoted to the grade of master sergeant (E-7).

On 24 Aug 98, General Court-Martial Order No. 7, states that the applicant pled not guilty to two charges, each with one specification of “Accessory after the Fact” (Article 78) and “Maiming” (Article 124), both of which were withdrawn after arraignment.  The order further states, that the applicant pled to and was found guilty of one charge with one specification of “False Official Statements” (Article 107) and was sentenced to confinement for 30 days and reduction to the grade of senior airman (E-4).  

According to AF Form 2098, Duty Status Change, the applicant was in a “military confinement” status from 24 Aug 98 through 21 Sep 98.  The remarks state that the applicant was 
court-martialed on 24 Aug 98 and the portion of his sentence referencing demotion indicates a reduction to the grade of technical sergeant (E-6).  
On 25 Jan 99, information extracted from the Military Personnel Data System (MilPDS) and an ARMS AFPC Shipment Document List, indicate that the Secretary of the Air Force Personnel Council (SAFPC) did not approve the applicant for advancement to the grade of master sergeant (E-7) when he reached a total of 30 years of combined active and retired service.   

On 1 Feb 99, the applicant retired in the grade of technical sergeant (E-6) with 21 years, 7 months and 27 days of active service for retirement.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

APPLICABLE AUTHORITY

AFI 36-3203, Service Retirements, Paragraph 7.5 (Advancing Enlisted Members to a Higher Grade after 30 Years of Service).  When Regular enlisted members’ and certain reserve enlisted members’ active service plus service on the retired list totals 30 years, they may be advanced on the retired list to the highest grade served on active duty satisfactorily and receive retired pay in that grade, as determined by the SecAF or designee under Tile 10 U.S.C. § 9344:  (a) Each retired member of the Air Force covered by subsection (b) 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 (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Air Force.  

Indicators that service was not satisfactory include the following: (1) The member held the highest grade for less than 6 months’ (2) The highest grade held was terminated for cause; (3) Retirement was in lieu of or a result of a demotion action and the retired grade is not the highest grade held, or (4)  New evidence exists about misconduct during past service; or (5) If a member’s retired grade is two or more grades lower than the highest grade held, SecAF or designee may advance the member to whichever grade is the highest served on active duty satisfactorily.

AIR FORCE EVALUATION

SAF/MRBP recommends denying the application.  A preponderance of the evidence shows that the applicant’s case was duly considered by SAFPC on 25 Jan 99.  While the decisional document is missing from the record, information extracted from MilPDS indicates that his case was considered and his advancement to the grade of master sergeant (E-7) was denied.  Had his advancement been approved, the applicant would have been advanced in 2009 when he reached 30 years of combined active and retired service.  As such, the presumption of regularity indicates, despite the missing document, his advancement was not approved.    

Furthermore, based on the merits of the case, the applicant was reduced in rank at a court-martial for cause based on egregious misconduct and SAFPC determined that his egregious misconduct outweighed any otherwise satisfactory service in the highest grade held.  More importantly, it has been well more than ten years since the alleged error/injustice was reasonably discoverable and the applicant has not presented any evidence that would serve to excuse the delay in timely filing this claim or undermine the presumption of regularity. 

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 20 Aug 19 for comment (Exhibit D), and the applicant replied on 16 Sep 19.  In his response, the applicant requested that his case be administratively closed, so that he could have additional time to respond to the questions.   

On 30 Sep 20, the applicant submitted a request to reopen his case and in response to the advisory, he provided additional documents, to include copies of six EPRs showing that he was rated as a master sergeant (E-7) and one EPR showing his last rating as a technical sergeant (E-6).  The EPRs reflect that he was primarily rated as a “5” for “Exceptional Performance” or for “Immediate Promotion.”  In addition, the applicant provided documents, which appear to be about the events that led to his demotion and indicate that he submitted a retirement package in late 1997.  

The applicant’s complete response is at Exhibit E and F.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.   After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of SAF/MRBP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2018-03042 in Executive Session on 26 Sep 19 and 17 Dec 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 3 Aug 18.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, SAF/MRBP, w/atchs, dated 13 Aug 19.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 20 Aug 19.
Exhibit E:	Applicant’s response, dated 3 Apr 20.
Exhibit F:	Applicant’s request to reopen, w/atchs, dated 30 Sep 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.