RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-00146

XXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

Correct his retirement orders to reflect retired grade as master sergeant (E-7).

APPLICANT’S CONTENTIONS

His rank on his retirement orders does not match his DD Form 214, Certificate of Release or Discharge from Active Duty.  His retirement pay is reflecting technical sergeant (E-6) and should be E-7.  He retired as an E-7 with a High-3 retirement plan.  

He was administratively demoted for toxic leadership while he was on terminal leave and an investigation ensued.  The investigation found the First Sergeant and Commander (who was relieved of his duties) were in the wrong and still under investigation.  After these findings, his rank was returned to the date of his demotion.  Unfortunately, his retirement orders still reflect E-6 and he is receiving E-6 retirement pay.  The Defense Finance and Accounting Service claims he must go through the Air Force Board for Correction of Military Records (AFBCMR) to update his retirement orders.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 5 May 20, according to AF Form 3070B, Record of Nonjudicial Punishment Proceedings (TSgt thru CMSgt), the applicant was issued nonjudicial punishment (NJP), under Article 15, Uniform Code of Military Justice (UCMJ), for:

-	Violation of UCMJ, Article 92 – he, who knew or should have known of his duties, at or near Hurlburt Field, Florida (FL), between 1 Sep 18 and on or about 30 Apr 20, was derelict in the performance of those duties in that he willfully failed to refrain from bullying junior service members in violation of Department of Defense Instruction 1020.03, Harassment Prevention and Response in the Armed Forces, Section 3, dated 8 Feb 18, as it was his duty to do so.
-	Violation of UCMJ, Article 128 – he did, at or near Hurlburt Field, FL, between on or about 1 Sep 18 and on or about 30 Oct 18, unlawfully touched an airman first class on his torso with his hands.
-	Violation of UCMJ, Article 128 – he did, at or near Hurlburt Field, FL, between on or about 1 Oct 18 and on or about 30 Nov 18, unlawfully lick an airman first class on his face.

The applicant was reduced to the grade of E-6, with a new date of rank of 12 May 20, and issued a reprimand.

On 1 Jul 20, according to Special Orders No. XXXXX, the applicant was relieved from active duty, organization, and station of assignment, effective 31 Jul 20, and retired effective 1 Aug 20, in the grade of E-6, with Highest Grade Held on Active Duty: E-6.

On 24 Jul 20, the applicant was issued a DD Form 214, reflecting “MSG” in Block 4a., Grade, Rate or Rank and “E-7” in Block 4b., Pay Grade.

On 11 Aug 20, according to Special Orders No. XXXX (amending Special Orders No. XXXX), the applicant’s Highest Grade Held on Active Duty was amended to read “E-7.”

On 20 Oct 20, a Satisfactory Service Determination found the applicant did not serve satisfactorily in any higher grade, and will not be advanced under the provisions of Section 9344, Title 10, United States Code.

On 5 Nov 20, according to Special Orders No. XXXX (amending Special Orders No. XXXX), the applicant is not advanced to the grade of E-7, under Sections 9344 and 9361, Title 10, United States Code.

On 18 Nov 21, the applicant’s DD Form 214 was administratively corrected to reflect “TSG” in Block 4a., Grade, Rate or Rank and “E-6” in Block 4b., Pay Grade.

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

AIR FORCE EVALUATION

HQ AFPC/JA recommends denying the application.  Additionally, JA recommends the applicant’s DD Form 214 be updated to reflect the demoted rank of E-6.  

The applicant was demoted to the rank of E-6, effective 12 May 20, via a Record of Nonjudicial Punishment (Article 15).  The servicing legal office’s staff judge advocate found this Article 15 to be legally sufficient on 27 May 20.  The General Court Martial Convening Authority supervisory review found the Article 15 to be legally sufficient on 4 Jun 20.

A review of the AFBCMR record in this case fails to reveal any evidence that the Article 15, or the punishment, was set aside or modified in any way.  Furthermore, this office, in coordination with the serving legal office, reviewed the Automated Military Justice Analysis and Management System, and no evidence of a restored rank was found.

The complete advisory opinion is at Exhibit C.

HQ AFPC/DP2SSR recommends denying the application.  Based on review of the applicant’s record, Military Personnel Data System, and the applicant’s request, DP2SSR can find no evidence that the applicant’s grade on his retirement order or the information in his record used to calculate his retired pay is incorrect.

The applicant was demoted to the grade of E-6, effective 12 May 2020, via Article 15 nonjudicial punishment.  On 1 Jul 20, the applicant was approved to retire effective 1 Aug 20 in the grade of E-6.  His retirement order, XXXX, dated 1 Jul 20, correctly reflected his grade at the time as E-6. 

On 24 Sep 20, a request was sent to the Secretary of the Air Force Personnel Council (SAFPC) for a satisfactory service determination relating to the applicant’s demotion and possible advancement on the retired list.  On 20 Oct 20, SAFPC determined the applicant did not serve satisfactorily in the grade of E-7 and would not be advanced on the retired list under the provisions of Title 10, United States Code, Section 09344. 

The applicant provided no evidence that his demotion was overturned and his rank was restored.  We can find no evidence in the applicant’s record that the Article 15 was invalid or that action was taken to set aside or remit the punishment.

The grade on the applicant’s DD Form 214 reflects E-7.  DP2SSR discussed the issue with the process owner who stated the incorrect rank was overlooked when the DD Form 214 was finalized, and they would perform a corrective action.

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 22 Nov 21 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was 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 rationales and recommendations of AFPC/JA and AFPC/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  There is no evidence the applicant’s demotion was overturned or set aside.  Additionally, SAFPC found the applicant did not serve satisfactorily in the grade of E-7 and would not be advanced on the retired list under the provisions of Title 10, United States Code, Section 09344.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, 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-2021-00146 in Executive Session on 1 Feb 22:

, 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/atch, dated 6 Nov 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, HQ AFPC/JA, w/atch, dated 15 Nov 21.
Exhibit D:	Advisory Opinion, HQ AFPC/DP2SSR, dated 15 Nov 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 22 Nov 21.

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.