RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04303 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: He be advanced on the Retired List to the highest grade he held, senior master sergeant (SMSgt, E-8). ________________________________________________________________ APPLICANT CONTENDS THAT: It was his understanding that when an individual retires, his pension would revert back to the highest grade attained once he reached 30 years from the day he swore allegiance to serve. He swore allegiance on 7 Jul 1972. Over thirty years has passed. While under custody at the Marine Correctional Facility, he was approached by an Air Force lawyer who claimed he needed to sign documents in order to retire as a staff sergeant (SSgt, E-5). The lawyer told him that if he refused to sign, or tried to fight it, he risked not receiving anything at all. He was not legally represented by anyone, and with everything that he and his family had been through, the potential threat of losing more was not something he considered. The prosecutor stated he was not after his retirement as he had dedicated and devoted over 20 years of his life, and served honorably. Everything that transpired in court led him to believe, after serving his time and retiring as an E-4, he would be advanced to the grade of E-8 when his time on active duty and time on the Retired List totaled 30 years. His court-martial was a devastating blow to his career and his life which he did not want to re-live. He tried to put it behind him. He learned not to dwell in the past, but concentrate in the present and look toward the future. Nevertheless, this grievance is something he has always carried with him. However, to take action would have meant opening old wounds and reliving a very painful time in his life. He was not ready to do that in 2005. He was recently laid-off from his job and the economy is slow to recover. Moreover, he is over 58 years-old, collecting unemployment for the very first time in his life, struggling to find a job, and living off his modest retirement savings. He is in danger of losing his home to foreclosure, struggling to provide for his family and is now willing to face the demons of the past. In support of his request, the applicant provides a personal statement, copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; AF Form 911, Senior Enlisted Performance Report (MSgt Thru CMSgt), and electronic communiqués. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Regular Air Force on 20 Nov 1972 and was progressively promoted to the grade of SMSgt, effective 1 Ju1 1990. On 12 Aug 1993, the applicant’s commander preferred court- martial charges against him for rape and indecent acts on divers occasions. The alleged victim was his younger daughter. Following a 23 Sep 1993 investigation of the allegations pursuant to Article 32 of the Uniform Code of Military Justice (UCMJ), the commander referred all charges and specification on 4 Nov 1993 to a general court-martial. These referred charges were served on 5 Nov 1993. On 12 Nov 1993, after consulting with his lawyer, the applicant submitted his request for retirement in lieu of court-martial. On 14 Dec 1993, the wing commander recommended the retirement application in lieu of trial by court-martial be denied. On 4 Jan 1994, the convening authority disapproved his retirement request and directed that the processing of the application be suspended, citing the seriousness of the charges as warranting resolution prior to any decision regarding the retirement. On 16 Mar 1994 his court-martial commenced and his daughter recanted. He then initiated a pre-trial agreement (PTA) offer to the convening authority. Under the terms of the offer, the applicant would plead guilty to the indecent acts charge and specifications if the government would withdraw/fail to present evidence on the rape charge and its specifications. The PTA also stipulated that the convening authority would not approve a sentence which provided for: confinement in excess of three years, a punitive discharge, reduction in grade below E-4 or forfeitures beyond one-half of the accused’s pay; finally, the PTA also stated, “[r]etirement paperwork will be initiated as soon as possible under applicable regulations.” On 16 Mar 1994, the General Court-Martial Convening Authority (GCMCA) approved and signed the PTA. On 17 Mar 1994, the applicant modified his pleas in conformity with his PTA. On 17 Mar 1994, pursuant to his guilty plea, the court convicted him of the indecent acts charge and specifications. On 18 Mar 1994, members of the court sentenced him to: reduction in the grade of E-3, five years confinement, and a dishonorable discharge from the Air Force. On 24 May 1994, the GCMCA took final action on the case and in conformity to the PTA terms approved only so much of the sentence that provided for confinement for three years and reduction to E-4. On 31 Oct 1994, the GCMCA signed a memorandum directing the resumption of the applicant’s retirement, which he had suspended on 4 Jan 1994. On 1 Feb 1995, he applied for retirement and retired in the grade of senior airman (SrA, E-4) effective 1 Jul 1996. He served 21 years and 4 months of total active service. On 19 Jan 1996, the Secretary of the Air Force determined he would be advanced to the higher grade of SSgt when his time on active duty and his time on the retired list totaled 30 years (10 USC §8964). He was advanced to the higher grade of SSgt effective 1 Mar 2005. ________________________________________________________________ AIR FORCE EVALUATION: HQ AFPC/DPSOR recommends denial. DPSOR determines an enlisted member's retired grade under 10 USC §8961(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. Because he held the grade of SrA on the date of his retirement, his record correctly reflects his retired grade as SrA. DPSOR forwarded his case to the Secretary of the Air Force for a decision as to whether the Air Force would advance him on the Retired List to a higher grade than SrA when his time on active duty and time on the Retired List totaled 30 years in accordance with 10 USC §8964: 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). On 19 Jan 1996, the Secretary of the Air Force determined he would be advanced to the higher grade of SSgt when his time on active duty and his time on the retired list totaled 30 years (10 USC §8964). With his 1 Mar 1975 Total Active Federal Military Service Date (TAFMSD), adjusted from 20 Nov 1972 for lost time from 18 Mar 1994 to 28 Jun 1996, he was advanced to the higher grade of SSgt effective 1 Mar 2005. The Secretary of the Air Force determined that he did not serve satisfactorily in any higher grade than SSgt. The complete DPSOR evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He takes exception to SAF/MRBR’s [sic] recommendation of denial. He realizes that these are tough times; there is a lack of funds due to a bad economy, as well as the sustaining of two wars. However, to deny him his pension based on his highest grade attained is inadequate. SAF/MRBR [sic] implied this by stating, "If the SecAF reconsiders his case and chooses to advance the applicant on the Retired List to the grade of SMSgt, the advancement would be effective 1 Mar 2005 upon completion of 30 years on active duty." As this was the best recommendation, he feels the reader may understand his frustration and consternation. Not only did he plead guilty with the condition to retire, but during the course of the court-martial there were no discussions that he would not be able to retire at his highest grade attained while serving in active duty. He asks the reader to refer to DD Form 214, dated 23 Jan 2012 for more details. Moreover, he completed 20 years of service on 19 Nov 1992 and received his separation certificate with “honorable” discharge from the Air Force effective that same day. If he had elected to retire at that point, his 20 years were guaranteed with a rank as a SMSgt. Furthermore, since he was not court- martialed for deception to the government for personal financial gains, such as waste, fraud and abuse, it is only fitting that he be allowed to retain his highest grade achieved while in active service. Denial of this request will serve no useful purpose other than to further penalize him and further victimize his family. His complete submission, with attachment, is at Exhibit D. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. In this regard, we note that Section 8964, Title 10, United States Code, allows the advancement of enlisted members to the highest grade in which they served on active duty satisfactorily as determined by the Secretary of the Air Force. The Secretary of the Air Force has delegated this authority to the Secretary of the Air Force Personnel Council (SAF/PC). The SAF/PC made the determination that the applicant did serve satisfactorily in the highest grade of SSgt and that he be advanced on the USAF Retired List by reason of completing a total of 30 years active service plus service on the Retired List, effective 1 Mar 2005. The applicant’s response to the Air Force evaluation is noted; however, we do not find his uncorroborated assertions sufficiently persuasive to override the rationale provide by the OPR. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered Docket Number BC- 2011-04303 in Executive Session on 5 Sep 2012, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2011-04303: Exhibit A. DD Form 149, dated 23 Jan 2012, w/atchs. Exhibit B. Applicant’s Master personnel Records. Exhibit C. Letter, HQ AFPC/DPSOR, dated 8 Mar 2012. Exhibit D. Letter, SAF/MRBR, dated 21 Mar 2012. Exhibit E. Letter, Applicant, dated 15 Apr 2012, w/atch. Panel Chair