. 

b 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

Au3  1 4  1993 

IN THE MATTER OF: 

DOCKET NUMBER:  97-02716 
COUNSEL:  NONE 

HEARING DESIRED:  NO 

Applicant requests restoration to his highest grade held of senior 
master  sergeant  (E-8) prior  to  his  conviction  by  Special  Court 
MarJial  on 17 December 1986.  Applicant's submission is at Exhibit 
A. 
The Defense Finance, and Accounting Service-Denver Center  (DFAS-DE) 
has advised that, although the applicant was retired in the grade 
of master sergeant, his retired pay is being computed on the basis 
of the pay grade of senior master sergeant  (E-8). 
The appropriate Air Force offices evaluated applicant's request and 
provided  advisory  opinions  to  the  Board  recommending  the 
application  be  denied  (Exhibit C).  The  advisory  opinions  were 
As 
forwarded to the applicant for review and response 
of this date, no response has been received by this office. 
After  careful  consideration  of  applicant's  request  and  the 
available  evidence  of  record,  we  find  insufficient  evidence  of 
error  or  injustice  to  warrant  corrective action.  The  facts and 
opinions stated in the advisory opinions appear to be based on the 
evidence of record and have not been rebutted by applicant.  Absent 
persuasive evidence applicant was denied rights to which entitled, 
appropriate regulations were not followed, or appropriate standards 
were not applied, we find no basis to disturb the existing record. 

(Exhibit D). 

Accordingly, applicant's request is denied. 
The Board  staff is directed to inform applicant of  this decision. 
Applicant  should also be  informed that this decision is final and 
will  only  be  reconsidered  upon  the  presentation  of  new  relevant 
evidence  which  was  not  reasonably  available  at  the  time  the 
application was filed. 
Members of the Board, Messrs. Douglas J. Heady, Joseph G. Diamond, 
and Henry Romo Jr., considered this application on 11 August  1998, 
in accordance with the provisions of Air Force Instruction 36- 2603 
and the governing statute, 10 U.S.C. 1 5 5 2 .  

DOUGLAS J. HEADY 
Panel Chair 

7 

.

-

Exhibits : 
 
B.  Available Master Personnel Records 
C.  Advisory Opinions 
D. 

SAF/MIBR Ltr Forwarding Advisory Opinions 

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I -  

I

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1- . 

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DEPARTMENT OF THE  AIR  FORCE 
A I R   F O R C E   L E G A L   S E R V I C E S   A G E N C Y   ( A F L S A )  

MEMORANDUM FOR AFBCMR 

FROM: AFLSNJAJM (Capt Pinjuh) 
112 Luke Avenue, Room 343 
Bolling Air Force Base, DC 20332-8000 

28 Oct 1997 

Applicant’s request:  In an application dated 6 September 1997 and received 

on 12 September 1997, the applicant requests to be restored to his highest rank held (E-8) 
prior to his conviction by Special Court-Martial on 17 December 1986. The applicant 
retired from active duty on 30 June 1987.  In his application, the applicant states that he 
discovered the alleged error in January 1987. Accordingly, the application was not 
submitted within the three-year limitation provided by  10 U.S.C.  1552(b) and is untimely. 
The applicant did not explain the delay in filing his request. 

action:  On 17 December 1986 
led guilty at a Special Court-Ma 

AFB 
of larceny of property of a value of more than $100.00 in violation of Article 12 1, UCMJ. 
He was sentenced by the military judge to a reduction to E-7 and a reprimand.  The 
convening authority approved the finding of guilty and the sentence on 14 January 1987. 
On 20 May 1987, the SAF determined pursuant to Section 8964, Title 10, United States 
Code, that the applicant did not serve satisfactorily in the highest grade that he held while 
on active duty (E-8).  Therefore, on 2 1 May 1987 the applicant was denied advancement 
on the retired list.  On 30 June 1987, the applicant retired from active duty as an E-7 and 
received an honorable service characterization. 

Applicant’s contentions: At the time of his court-martial, the applicant had 

completed over 26 years of active duty.  The applicant asks to be restored to his highest 
rank held (E-8) prior to his conviction by Special Court-Martial on 17 December 1986. 
He does not request any back pay.  He states that “justice has been served and my family 
and I have suffered enough humiliation and financial loss these last eleven years.”  He is 
currently unable to work due to a stroke.  He states that “the restoration of rank would 
show me that I am forgiven by the USAF.”  The applicant has not submitted any evidence 
to support his request. 

Discussion:  At trial, the applicant’s entire record was provided to the military 

judge for consideration during sentencing. The maximum punishment for the applicant’s 
offense was a BCD, confinement for 6 months, a reduction to E-1 , and forfeiture of 2/3 

pay per month for 6 months.  After considering the record for his entire career, the 
military judge saw fit to sentence the applicant to a reduction to E-7 and a reprimand for 
his crimes.  The court’s decision is well-within legal parameters and supported by the 
applicant’s plea of guilty and the evidence of record. 

The applicant’s court-martial was properly convened and had jurisdiction over the 

applicant and the offense tried.  The specification stated an offense under the UCMJ. 
Knowing that he was approaching retirement, the applicant jeopardized his military 
career and retirement pay by shoplifting over $100.00 worth of Goebel figurines. 
Considering the available maximum punishment for his crime, the judge displayed 
tremendous leniency in determining an appropriate punishment for the applicant. 
Additionally, the convening authority considered the results of the applicant’s court- 
martial during clemency and decided to approve his sentence.  At the time of the offense, 
the applicant was a SMSgt with over 26 years of service.  His crime reflected a vast 
departure from the maturity and leadership expected of a senior NCO.  The decision of 
the court and the convening authority is appropriate. 

Moreover, the SAF made a grade determination at the time of the applicant’s 

retirement and concluded that he did not serve satisfactorily in the grade of SMSgt and 
approved his retirement at the lower grade of MSgt.  In light of the crime committed by 
the applicant as a SMSgt, an upgrade in his retirement rank is not warranted.  The 
applicant simply has not provided any evidence to the Board which would justify 
granting his request. 

Recommendation:  The applicant’s request is untimely and should be denied for 

failing to comply with the statute of limitations.  Further, after review of the available 
records, I conclude there are no legal errors requiring corrective action and granting the 
applicant’s request is not warranted.  The applicant’s court-martial and resulting 
punishment were properly executed and legally sufficient.  I recommend that the 
applicant’s request be denied. 

’LOREN S. PERLSTEIN 
Associate Chief, Military Justice Division 
Air Force Legal Services Agency 

DEPARTMENT  O F  THE A I R   F O R C E  

, 
H E A D Q U A R T E R S   AIR  FORCE P E R S O N N E L  C E N T E R  

U 

R A N D O L P H  AIR  FORCE B A S E  T E X A S  

MEMORANDUM FOR AFPC/DPPRR 

AFBCMR 
IN TURN 

FROM:  HQ AFPCDPPPWB 

550 C Street West, Ste 09 
Randolph AFB TX  78 150-47 1 1 

f 

' 

e

,

 

SUBJECT:  Application for Correction of Military Records - 

I Requested Action.  The applicant is requesting restoration to the highest rank held, 

SMSgt (E-8), prior to his Special Court- Martial 

Reason for Request.  The applicant feels that justice has been served and that restoration 
of his previous grade would show him that 'he has been forgiven by the USAF.  Also, since he is 
now unable to work, he states restoration of his previous grade would provide a better standard 
of living for him and his family. 

Facts.  See AFLSA/JAJM Memorandum, 28 Oct 97. 

Discussion. The applicant was promoted to SMSgt effective and with a DOR of 1 Jul 85. 

On 17 Dec 86 he was arraigned and tried before a Special Court-Martial and pled guilty to the 
charge of stealing Goebel figurines of a value of more than $100.00.  He was reprimanded and 
reduced to the grade of MSgt (E-7) effective 14 Jan 87.  AFLSNJAJM has addressed the 
appropriateness of restoration of the applicant's grade and recommended denial.  We defer to 
their recommendation.  Again, the applicant's DOR and effective date to SMSgt was 1 Jul 85. 

Recommendation.  We defer to the recommendation of AFLSNJAJM. 

Chief InquiriedAFBCMR Section 
Enlisted Promotion Branch 

D E P A R T M E N T  OF T H E  A I R   FORCE 

H E A D Q U A R T E R S  AIR  FORCE  P E R S O N N E L C E N T E R  

R A N D O L P H  AIR  FORCE  B A S E  T E X A S  
9 Dec 97 

MEMORANDUM FOR AFBCMR 
FROM: HQ AFPCDPPRR 

550 C Street West, Suite 11 
Randolph AFB TX 78 150-47 13 

SUBJECT:  Application for Correction of Military Records 

Requested Action.  The applicant is requesting restoration to the highest rank held 

of senior master sergeant (E-8) prior to his conviction by  Special Court-Martial on 17 
December 1986. 

Basis for Request.  Applicant states “I feel justice has been served and my family 

and I have suffered enough humiliation and financial loss through these eleven years.  I am 
not asking for any back pay, only to have my rank restored which I hope will give me back 
a measure of my self worth and reflect a more accurate reflection of my military career.” 

Discussion. 

a.  On 17 Dec 86 at 

applicant pled guilty at a 
Special Court-Martial to one s p e c i f i p o p e r t y  of a value of more than 
$100.00 in violation of Article 121, UCMJ.  He was sentenced by the military judge to a 
reduction to master sergeant (E-7) and a reprimand.  The convening authority approved 
the finding of guilty and the sentence on 14 Jan 87.  On 20 May 87, the SAF made a 
determination that the highest grade the applicant satisfactorily held on active duty for 
advancement purposes was master sergeant (E-7) (Atch 1). 

b.  At the time of his court-martial, the applicant had completed over 26 

years of active duty.  Under the provisions of Comptroller General Decision (CG- 
B187683), 23 June 1977 (Atch 2) and Section 1401a(f), Title 10, United States Code 
(Atch 3), we believe applicant may be entitled to receive retired pay at his former grade of 
senior master sergeant (E-8).  We defer to DFAS-CL for their comments and 
recommendation regarding whether or not applicant is entitled to receive retired pay at his 
former grade of senior master sergeant (E-8). 

c.  This may be in conflict with the SAF grade determination completed 20 
May 87 in accordance with Sections 8964 and  1371, Title 10, U.S.C.  However, in those 
cases where the Secretary has ruled that service in the higher grade was not satisfactory 
for advancement or disability retirement, a member may still be entitled to retired pay in 
their higher grade, regardless of the gradehank they actually hold. 

d.  The applicant applied for retirement to be effective 1 Jul87 (Atch 4). 
Section 8961, Title 10, U.S.C., (Atch 5) states:  “Unless entitled to a higher retired grade 

under some other provision of law a regular or reserve of the Air Force who retires other 
than for physical disability retires in the regular or reserve grade that he holds on the date 
of his retirement.”  Again, based on the Comptroller General Decision and Section 
1401a(f), Title 10, U.S.C., applicant may be entitled to receive retired pay at the grade of 
senior master sergeant (E-8) instead of master sergeant (E-7). 

e.  As for the applicant’s request for restoration to the highest rank held 
senior master sergeant (E-8)’ there are no provision to grant this request.  There is an 
advancement law (Section 8964, Title 10, U.S.C.) that applied to this applicant.  This law 
allows for advancement of a regular enlisted member to the highest grade satisfactori& 
held on active duty when active duty and duty on the retired reserve list totals 30 years. 
However, the Secretary made a determination on 20 May 87, that applicant did not serve 
satisfactorily in any higher grade than master sergeant (E-7) (Atch 1). 

Recommendat ion.  Denial. 

a.  In accordance with the provisions of law, the applicant was correctly 
retired in the grade of master sergeant, which was the grade he held on the date of his 
retirement. 

b.  Applicant’s grade determination for advancement purposes was 
accomplished in accordance with the law and procedures on 20 May 87 and it was 
determined at that time that the highest grade served in satisfactorily was master sergeant 
(E-7). 

c.  However, there is a statement on applicant’s retirement orders (Atch 6) 

that states:  “Held grade of senior master sergeant (E-8) fiom 1 July 1985 through 13 
January 1987.  CG-B187683,23 June 1977 may apply .”  DFAS-CL should provide 
comments and recommendation concerning the possible entitlement to retired pay as a 
senior master sergeant (E-8). 

VP Directorate of Pers Program Management 

et irement Branch 

Attachments 
1.  SAF Memorandum, 20 May 87 
2.  CG-B187683’23 Jun 77 
3.  Section 1401a(f), Title 10, U.S.C. 
4.  AFForm 1160 
5.  Section 8961, Title 10, U.S.C. 
6.  Retirement Orders