RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2021-02400

XXXXXXXXXXXX	COUNSEL:  NONE
	
	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

His military record corrected to reflect he retired as an E-6/technical sergeant instead of an E-5/   
staff sergeant.

APPLICANT’S CONTENTIONS

When he retired in 2005, he was told he did not have to promote to E-6 again because he would retire at that grade.  Although he passed the polygraph at the time of demotion, he was reduced to the grade of E-5.  He passed the exam for E-7 and would have sewn on E-7 in 2002.  He was demoted to E-5 and was not allowed to separate, but was held to retirement and told he would retire as an E-6.  He never attempted to make E-6 again because he was told he would retire at that grade.  The separations noncommissioned officer in charge refused to assist him and stated he would not do the waiver; the applicant would have to retire as an E-5 and try later to get his rank back. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 13 Oct 98, the applicant was issue nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for, in violation of Article 91, UCMJ:

-	At or near XXXX, XXXX, on or about 16 Sep 98, was disrespectful in language towards a noncommissioned officer, then known by him to be a noncommissioned officer, who was then in the execution of his office, by saying to him, “I am not your [expletive] child and don’t talk to me that way,” or words to that effect.
-	At or near XXXX, XXXX, on or about 16 Sep 98, did treat with contempt a noncommissioned officer, then known by him to be a noncommissioned officer, who was then in the execution of his office, by hanging up the telephone on him.

The applicant was reduced to the grade of E-5/staff sergeant, suspended until 12 Apr 99, after which time it would be remitted without further action, unless sooner vacated, forfeited $100.00 pay per month for two months, and was reprimanded.

On 2 Jul 01, the applicant was issue NJP under Article 15, UCMJ for, in violation of Article 92, UCMJ:

-	At or near XXXX, XXXX, on or about 15 May 00, fail to obey a lawful general regulation, to wit:  Air Education and Training Command Instruction 36-2002, Recruiting Procedures for the Air Force, paragraph 1.1., dated 18 Apr 00, by wrongfully concealing an applicant’s disqualifying moral offense information, failing to comply with moral eligibility determination waiver requirements, and instructing the applicant to conceal his moral offense history.

The applicant was reduced to the grade of E-5/staff sergeant, with a new date of rank of 2 Jul 01, and reprimanded.

On 9 Mar 05, a Satisfactory Service Determination (SSD) was made by the Secretary of the Air Force finding the applicant did not satisfactorily serve in any higher grade than staff sergeant and would not be advanced under the provisions of Section 8964, Title 10, United States Code.

On 31 Dec 05, the applicant was furnished an honorable discharge with a Narrative Reason for Separation of Maximum Service or Time in Grade.  He was credited with 20 years and 21 days of active service, and retired effective 1 Jan 06, in the grade of E-5.

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

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the application.  Based upon review of the applicant’s record, the Military Personnel Data System, and the applicant’s request, no evidence was found that the applicant’s retired grade, or the information in his record regarding his retired grade, is incorrect. 

The applicant was demoted, via Article 15, NJP, to the grade of E-5, effective 2 Jul 01.  On 15 Mar 05, he was approved to retire effective 1 Jan 06 in the grade of E-5.  His retirement order correctly reflects his retired grade as E-5, and his highest grade held on active duty as E-6.

In accordance with 10 USC §8961(b), now §9341(b), General Rule:

(b) Unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Air Force not covered by subsection (a) who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement.

Enlisted airmen who were demoted prior to retirement and did not regain the highest grade held on active duty may be advanced on the retired list as determined by the Secretary of the Air Force (SAF) or designee.

In accordance with 10 USC §8964, now §09344, Higher grade after 30 years of service: warrant
officers and enlisted members:

(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.

(b) This section applies to - (1) warrant officers of the Air Force; (2) enlisted members of the Regular Air Force; and (3) reserve enlisted members of the Air Force who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time duty).

Prior to the applicant’s retirement, an SSD request was sent to the Secretary of the Air Force Personnel Council (SAFPC).  On 9 Mar 05, SAFPC determined the applicant did not serve satisfactorily in the grade of E-6 and would not be advanced on the retired list under provision of Section 08964, Title 10, USC.

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 10 Dec 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/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant’s retired grade is in accordance with Public Law.  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.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2021-02400 in Executive Session on 15 Mar 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/atchs, dated 13 Jul 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSR, dated 9 Dec 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 10 Dec 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.