RECORD OF PROCEEDINGS

IN THE MATTER OF:                             DOCKET NUMBER: BC-2019-04810

XXXXXXXXXXXXX                                COUNSEL: NONE
	 
                                                                     HEARING REQUESTED: NOT INDICATED

APPLICANT’S REQUEST

His highest held grade (HHG) of technical sergeant (TSgt, E-6), with date of rank (DOR) of 1 Dec 98 be reinstated.  

APPLICANT’S CONTENTIONS

He is not requesting back pay but restoration of his grade.  He performed at a high level during his military career.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a retired Air Force staff sergeant (SSgt, E-5).  

AF Form 3070, Record of Nonjudicial Punishment Proceedings, dated 28 Jan 02 shows the applicant received an Article 15 for writing checks when he did not have sufficient funds or credit for payment.  His commander stated he wrote over 100 worthless checks totaling more than $10,000.  Punishment included reduction to the grade of SSgt, with new DOR of 6 Feb 02.  

On 20 Mar 02, the Secretary of the Personnel Council (SAFPC) determined he did not serve satisfactorily in any higher grade and would not be advanced under the provisions of 10 U.S.C. §
8964. 

On 31 Jul 02, he was discharged and retired effective 1 Aug 02 in the grade of SSgt with a narrative reason for separation of “Maximum service or time in grade.”  He served 20 years, 6 months and 17 days of active duty service.   For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinions at Exhibits C and D.

AIR FORCE EVALUATION

AFPC/DP2SPP states their office does not have the authority to provide clemency or have equity in the decision regarding the Article 15 or whether he served satisfactorily in a higher grade.  The complete advisory opinion is at Exhibit C.

SAF/MRBP recommends the case be denied as untimely.  He was demoted to the grade of SSgt in 2002 and retired in Aug 02.  He attained 30 years of combined active and retired service in 2012.  The applicant has provided no justification for why the Board should find it in the interest of justice to waive the three-year statute of limitations.  On the merits, the applicant has presented no evidence to indicate he is the victim of an error or injustice.  The case was duly considered by SAFPC in 2002 who concluded his service in the higher grade was not satisfactory.  Although the applicant contends he served satisfactorily for 20 years, he was reduced in grade through an Article 15 for egregious misconduct.  The complete advisory opinion is at Exhibit D.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 13 Jan 20 for comment (Exhibit E), but has received no response.

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-2019-04810 in Executive Session on 13 Apr 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, w/atchs, dated 20 Sep 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SPP, dated 26 Nov 19.
Exhibit D: Advisory opinion, SAF/MRBP, dated 17 Dec 19. 
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 13 Jan 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.