RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-00830

XXXXXXXXXX	COUNSEL:  XXXXXXXXXXXX
	
	HEARING REQUESTED:  NO  	

APPLICANT’S REQUEST

His records corrected to reflect:

1.	Promotion to master sergeant (E-7)
2.	Back pay from date of promotion to date of retirement
3.	Back pay from his retired pension

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, contended he was selected for promotion to master sergeant (E-7), but the Air Force never followed through on finalizing the promotion.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 15 Jun 07, a Record of Counseling of Retirement Eligible Selectees (Cycle: 07E7), notified the applicant he was selected for promotion to the grade of master sergeant and would incur an active duty service commitment (ADSC) of two years from the effective date of promotion, and he must complete this commitment to qualify for voluntary, non-disability retirement.  He must obtain retainability for the required two-year ADSC prior to the effective date of the promotion.  The applicant accepted the promotion and signed his acknowledgement on 20 Jun 07.

According to Commander, Air Force Office of Special Investigations (AFOSI/CC) memorandum, undated, the applicant was notified he would be decertified and permanently removed from Special Agent status.

On 6 Nov 07, according to CMS 2098, Duty Status Change, the applicant’s duty status was changed from 00-Present for Duty to 04-Civ Confinement (Under Arrest/Pending Trial/Awaiting Sent).  Remarks:  Member voluntarily surrendered his bond and awaits his 5 Dec 07 trial at the Middle Peninsula Regional Security Center, Saluda, VA.

On 5 Dec 07, according to CMS 2098, Duty Status Change, the applicant’s duty status was changed from 04-Civ Confinement (Under Arrest/Pending Trial/Awaiting Sent) to 00-Present for Duty.  Period of absence from 6 Nov 07 – 4 Dec 07 is determined as Lost Time, per AFI 36-2134.  Remarks:  Member released from confinement, time served.

On 29 Jan 08, according to AF IMT 1411, Extension or Cancellation of Extensions of Enlistment in the Regular Air Force/Air Force Reserve, the applicant requested a 10-month extension of his current enlistment for the purpose of Retirement.  Applicant’s request was approved 29 Jan 08 and his Date of Separation of 28 May 08 was extended to 28 Mar 09.

On 6 Mar 08, according to AF IMT 2096, Classification/On-the-Job Training Action, the applicant’s Primary and Control Air Force Specialty Code (PAFSC and CAFSC) were changed from 7S071 to 9A200, effective 12 Mar 08.  Member was permanently disqualified from AFOSI duties.

On 6 Mar 08, according to Special Orders No. XXXXX, the applicant is relieved from active duty, organization and station of assignment, effective 28 Feb 09 and retired effective 1 Mar 09, in the grade of technical sergeant, with 20 years, 6 days active service for retirement. 

On 29 Apr 08, according to AF Form 910, Enlisted Performance Report (AB thru TSgt), for period 3 Apr 07 – 2 Apr 08, the applicant received a referral Enlisted Performance Report.  Ratings of “Does Not Meet Standards” in Section III, items 2 and 4, and rater’s comments in those sections regarding the applicant’s off-duty misconduct and arrest by civilian law enforcement authorities, caused the report to be referred.

On 28 Feb 09, the applicant was furnished an honorable discharge, with Narrative Reason for Separation:  Vol Retirement: Sufficient Service for Retirement, and credited with 20 years, 1 month, 4 days net active service in accordance with 10 United States Code 1405.

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

AIR FORCE EVALUATION

AFPC/DP2SPP recommends denying the applicant’s request for promotion to MSgt/E-7.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice in regards to the withholding of his promotion to MSgt/E-7.  

On 15 Jun 07, the applicant received a 2-year ADSC for Promotion to MSgt Agreement RIP which he signed/acknowledged on 20 Jun 07.  The applicant was then placed in withhold status until the action could be completed.   The applicant never obtained the required ADSC for new rank prior to 1 Aug 07 or thereafter.  Per Air Force Instruction (AFI) 36-2502, Airman Promotion Program (Published: 06 Aug 2002), Table 1.2 – Withholding Promotion, Item 10 “Does not have two years of retainability the day before the promotion date.”

On 06 Mar 08, AF Form 2096, Classification/On-the-Job Training Action submitted to change the applicant’s Primary and Control AFSCs from 7S071 (Special Investigations) to 9A200 (Enlisted Airmen Awaiting Discharge, Separation, or Retirement), with an effective date of 12 Mar 08. The Remarks section noted, “Member permanently disqualified from AFOSI duties.” Further, the applicant concurred and signed this form on 18 Mar 08.

In accordance with AFI 36-2101, Classifying Military Personnel (Officer and Enlisted), paragraph 2.4.3.3.5. Certifying and Withdrawing Certification for AFOSI (AFSC withdrawal and/or disqualification).
i. 2.4.3.3.5.1. The AFOSI/CC has sole authority for certifying and withdrawing AFOSI certification for RegAF and ARC Airmen in the 71XX and 7SXXX AFSCs.
ii. 2.4.3.3.5.2. Withdrawing certification requires the withdrawal of the AFSC (disqualification) unless the AFOSI/CC grants an exception. The FSS submits AFSC disqualification actions via CMS to AFPC/DP2SSM

In accordance with AFI 36-2502, Enlisted Airman Promotion and Demotion Programs, Table 1.1, Rule D18; Individuals placed in RI9A200 will remain ineligible for promotion until awarded new AFSC.

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 30 Aug 21 for comment (Exhibit D), 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 AFPC/DP2SPP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant did not obtain the required retainability to execute his promotion to master sergeant prior to the 1 Aug 07 effective date, in accordance with AFI 36-2502.  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-2021-00830 in Executive Session on 30 Nov 21:

, 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 25 Feb 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SPP, dated 19 Aug 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Counsel, dated 30 Aug 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.