AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NO:  9 8 - 0 0 1 6 6  
COUNSEL:  NONE 

HEARING DESIRED:  NO 

ic 

Applicant  requests that  his  grade  at  the  time  of  discharge be 
changed  from  airman  first  class  (AlC) to  senior  airman  (SRA). 
Applicant's submission is at Exhibit A. 

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 
forwarded to the applicant for review and response  (Exhibit D). 
As 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. 

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, Mr.  David C. Van Gasbeck, Mr. Michael  P. 
Higgins, and Mr. Thomas S .   Markiewicz considered this application 
on 17 June 1998, in accordance with the provisions of Air Force 
Instruction 3 6 - 2 6 0 3 ,   and the governing statute, 10 U.S.C. 1552. 

Exhibits: 

A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C.  Advisory Opinions 
D.  SAF/MIBR Ltr Forwarding Advisory Opinions 

DEPARTMENT  OF THE A I R   FORCE 

’ 
H E A D Q U A R T E R S   A I R   FORCE PERSONNEL C E N T E R  

RANDOLPH AIR  FORCE BASE TEXAS 

18 March 1998 

MEMORANDUM FOR AFBCMR 

FROM:  HQ AFPCLJA (Colonel Rooten) 
550 C Street West Ste 44 
Randolph AFB TX 781 50-4746 

We reviewed this Application for Correction of Military Records and found no errors of 

law requiring comment.  We defer to AFPC/DPPPWB’s advisory which indicates applicant 
never completed the minimum requirements for promotion to Senior Airman, and therefore, his 
application should be denied.  Nevertheless, since the BCMR’s consideration of applicant’s case 
must also address his contention of injustice, we thought it might be instructive to review the 
standard for establishing an injustice. 

A fair reading of the legislative history and judicial interpretations of 10 U.S.C.  1552(b) 

clearly supports an interpretation that relief should be limited to those situations to preclude 
substantial injustice, rather than to insure precise uniformity of treatment or to favor one side or 
the other on issues about which differences of opinion might reasonabIy exist.  The United States 
Claims Court has repeatedly defined an injustice (or “in the interest of justice”) as that behavior 
or an action that rises to a level of shocking the conscience.  See Sawyer v.  United States, 18 
Ct.Cl. 800 (1989). 

In our opinion, this case is clearly not one which could be characterized as “shocking the 
conscience.” Applicant made a conscious decision to not return to active duty when offered that 
oppoxtunity, and even now, in his application, he does not ask to return to active duty to fulfill 
the minimum requirements for promotion. 

WILLARD KYOCKWOOD 
Senior Attorney-Advisor 

98001 66 

. . -.  . . . .  . . . 

D E P A R T M E N T  O F  T H E  A I R   FORCE 

HEADQUARTERS  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  A I R   FORCE  BASE TEXAS 

MEMORANDUM FOR AFBCMR 

FROM:  AFPC/DPPPWB 

550 C Street West, Ste 09 
Randolph AFB TX 78 150-471 1 

Requested Action.  The applicant is requesting his grade at the time of discharge from the 
Air Force be changed to reflect senior airman (SRA) (E-4) and not airman first class (AlC) (E- 
3). 

Reason for Request,  The Applicant believes that he should have been promoted to the 

grade of senior airman on 10 May 92 because his court martial conviction was set aside. 

Facts. - The applicant’s records reflect that he was discharged in the grade of airman fust 

class on 25 Mar 96. 

Discussion. 

a.  Basic eligibility criteria for promotion to SRA is 36 months total active federal military 
service (TAFMS) and 20 months time-in-grade (TG) (both requirements must be met) as an A1C 
or 28 months TIG as an A1 C, without regard to TAFMS.  The member will be promoted on the 
date either of these parameters is satisfied, which in his case would have been 10 May 92. 
However, in addition to the TIG and TIS requirements, the member must not be ineligible in 
accordance wit% AFI 36-2502, Tables 1.1 and 1.2, have a 5-skill level primary Air Force 
Specialty Code (AFSC) and all promotions must be approved by the commander. 

b.  A review of the applicant’s records reflects the following scenario.  Applicant tested 

positive for cocaine in a random urinalysis Aug 9 1 and placed in Substance Abuse Reorientation 
and Treatment (SART) program. On 18 May 92 he requested a discharge in lieu of trial by court 
martial and it was denied on 10 Jun 92.  General Court Martial Order # 82 on 17 Jul92 found 
him guilty and his sentence adjudged on 12 Jun 92.  The punishment consisted of a bad conduct 
discharge, confinement for 30 days (served 15 .Tun 92 thru 8 Jul92) and forfeiture of $500.00 pay 
for one month, and reduction to airman basic.  Applicant was put on appellate review leave 
starting 22 Jul92 and on 25 Aug 95 the court martial was set aside per General Court Martial 
Order # 7 dated 29 Nov 95 and the charge and specification were dismissed.  Applicant was 
directed to return to active duty no later than 15 Dec 95 and he requested and was granted an 
extension.  The applicant declined the opportunity to be recalled to active duty and requested that 

9800 

56 

... 

he be separated with an honorable discharge.  He was discharged on 26 Mar 96 in the grade of 
A1C. 

c.  Although the applicant met the 20 months time-in-grade requirement for promotion to 
SRA on 10 May 92, he did not possess the required 5-skill level primary Air Force Specialty 
Code (AFSC).  Also, we are unable to determine at this time if the applicant would have been 
recommended for promotion based on the circumstances during this time fiame, even if he had 
held the mandatory 5-skill level PAFSC.  Also, the computer generated rip (Report on Individual 
Person) dated 29 Dec 95 reflects promotion eligible status code as 0, which identifies a member 
who failed SART track 3, 4, or entered SART track 5, which renders individual ineligible for 
promotion as outlined in AFR 39-29 Table 2 Rule U.  For these reasons we do not support the 
applicant’s promotion to SRA.  If the board disagrees it could promote him 10 May 92, assuming 
it waived the required 5-level PAFSC.  The applicant claims that he would have been promoted 
to SRA on 10 May 92 and would have tested for SSgt one year later.  Based on a DOR to SRA of 
10 May 92, he would have met the time-in-grade requirement for SSgt for the 94A5 cycle 
(promotion effective Sep 93 - Aug 94) with promotion testing during Apr - Sun 93.  Again, there 
is no certainty he would have been  selected for promotion to S S g t  even if he was otherwise 
eligible for consideration, to include the recommendation of his commander.  In addition to 
meeting all basic eligibility requirements, a member must also take the required Promotion 
Fitness Examination (PFE) and Specialty Knowledge Test (SKT).  Without these tests an 
individual cannot be considered for promotion to SSgt. 

.  Recommendation.  Denial of the applicant’s request based on the rationale provided. 

Attachment: 
Extract cy, AFR 39-29 

Chief, InquirieslBCMR Section 
Airman Promotion Branch 

98001 66 

'  24 

AFR 39-29(C1) 

24 August 1990 

TABLE 2 
DETERMINING ISELIGIBILITY  FOR PROMOTION (see note I)  5. I 

I 

RULE 

I 

. 

.

I

 

voluntary retirement instead 

i 

/ 

I 

%d 

oknmitment. Grade-status-reason is3C. No change in PEScode 

appli 's  6r voluntary retirement after promotion  selection notification, and as a result of 
the a 
roved retirement, does not have suBicient retainability tosatisfy the required ser. 
vice 
has an approved  application  for separation as a conscientious objector,  or  is being pro- 
wssed for involuntary separation under AFR39-10. PES code V 
ison the select List and declines promotion, or is a MSgt, SMSgtq or CMSgtselectee and has 
failed to acquire service retainability  required  by  paragraph  15. Grade-status-reason  is 
3D. No chanae in PES code 

I

x

 

~~ 

/ 

S  has XCO status denied or vacated, or has been denied or not selected for reenlistment, PES 

IcocieJ 
is undergoing administrative demotion action under AFR 39-30. PES code H 

I T  

. -.  .. . . . . . 

AFR 39-29(C1) 

24 August 1990 

-- . 

TABLE 2. CONTINUED 

If on or after the promotion ekigiblllty cutoff date, and the airman is 
U 

IS  identified as a substantiated substance abuser far other than alcohol who has not SUC- 
cessfully completed rehabilitation under the USAF SART Program. PES code T 
is disqualified for cause from a previously held AFS. PES code Q 
is undergoing  a suspended reduction imposed by UCMJ, Article 15. PES code A (See Note 
7.1 

V 
*W 

24.1 

I 

1

 1 
x

x
x

 

 
 

I 

1 
X 

x
X 

RULE 
3
x

2 
X 

x
I 

x
x

NOTES 
1.  For ineligibility of airmen entering commissioning pro- 
grams,see paragraph 
2.  Airmen will not receive supplemental promotion consid- 
eration for any cycle  in which  they were  ineligible  under 
this rule. The PES code will be changed to “X’ eflective the 
date the specific ineligibility condition ends; for example, 
the date AFMPC approves the withdrawal of a PCS declina- 
tion statement. 
3.  Airmen serving in the grade of AB through h l C  may be 
promoted the day following completion of punishment or re- 
moval from the  control  raster.  if  the  commander  recom, 
mends it and the airman is  otherwise  eligible (see para- 
graphs 13 and 14). For airman in grades Srmgt through 
SMSgt, see paragraph 5. 
4.  An airman who remains on  active duty in a  limited as- 
signment status (LAS), or who remains on active duty and 
is later found tit after formal proceedings is promotedon the 

promotion  effective date on which  the seniority sequence 
number is announced. 
5. Airmen  in  the  grade  of  AB,  Arnn,  or  A1C  are 
nonrecommended  in monthly increments fram the original 
effective date under AFM 30-130, volume I. chapter 15. BTZ 
selectees who are later removed  from the selection list re- 
main ineligible unti1 they meet their fully qualified  promo- 
tion criteria. 
6.  Waiver of the promotion  ineligibility  or any portion  of 
the ineligible period is authorized, No &*aiver is authorized 
if  the  airman is  convicted and sentenced  to confinement. 
The waiver authority rests with the YAJCO;MIDPi3IP and 
is not delegated lower than the base commander. 
*7.  Effective 1 August 1990, Any Article 15,suspcnded re- 
duction rendered prior to  1 August 1990 remains under the 
provisionsofparagraph 27. 

98001 66 
. -  . . . . 

AFR 39-29(C3) 

30 April 1993 

25 

TABLE 3 
WITHHOLDING PROMOTION 

I 

1 
An airman’s promotion is withheld when his or her name is not removed from a selected or eligibility list and the 
airman is 

1 
T 
E 

M - 
1 
- 
2 
- 
3 
4 
5 
_. 
6 
7 
8 

~~ 

* 9  
- 

- 

-  . _. 

awaiting a decision on an application  as a conscientious  objector  (AFR 35-24). PES code S. 
placed  into the SART Program  for alcohol abuse.  PES code  E  (see notes 1 and  2). 
in the Weieht Manaeement Proeram (WMP). Phase I (codes 1.  2.5.  or 6). PES code I (see notes  1 and 3). 
under court-martial or civil charges.  PES code D (see note  4). 
Dendinrr data verification and the record  is not available. GSR code 2D. 
missing a source document,  and the CBPO cannot verify one or  more promotion factors.  GSR code 2R. 
under other reasons as the commander requests with prior  approval from the individuals MAJCOM (see note  5). 
identified  as  having  18  or  more  years’  TAFMS  a s   of  the  promotion  efTective  date  and  does  not  have  2  years’ 
retainability  as of the day before the Dromotion effective date. 
serving  in  the  grade  of  SrA  and  has  not  completed  the  noncommissioned  officer  preparatory  course  or. the  airmen 
leadership school; serving in the grade of  TSgt  and has not completed  the command  NCO  academy or SMSgt and  has 
not comdeted the senior NCO academy (or equivalency) in residence  (see  note 6). 

-  __ 

~~ 

~~ 

~ 

NOTE(S): 
1.  Individuals  may  be  promoted  on  successful  comple- 
tion of the SART program  for alcohol  abuse or when the 
WMP  or  Fitness Program  standards are met.  Withhold- 
ing the  promotion  is  not  mandatary  for  individuals  who 
identify themselves for  treatment in  the  SART program 
for alcohol abuse according to AFR 30-2. 
2.  The  unit commander  has the authority to  waive pro- 
motion  eligibility  restrictions  for  those  individuals  en- 
tered  into  aftercare.  Commanders  should  consider  rec- 
ommendations  of  the  intervention  committee  members, 
but the promotion  authority  retains final decision. 
3.  An  individual may  be  submitted  far  an exception  to 
policy  when  placed  into WMP  code  5  if  the  promotion 
authority decides it is appropriate. 
4.  A commander may withhold a n  airman’s promotion  if 

the  airman  is under  investigation  or  is  a  subject  of  a n  
inquiry (formal  or  informal)  that military  authorities or 
civil  law  enforcement  authorities  are  conducting  that 
may  result in action under WCMJ  or  prosecutibn  by civil 
authorities. The  commander  may  also  withhold  the pro- 
motion  if  the  investigation  or  inquiry  has  been  com- 
pleted  but  no  determination  has  been  made  as to  the 
action. the  military  or  civil  authorities  will  take.  PES 
code B. 
5.  The  MAJCOM  DP  or  MP  may,  delegate  approval 
authority  no lower than the wing commander. 
*6.  Waiver  authority  for  noncompletion  of  the  in-resi- 
dent  PME  courses  for  promotion,  to  the  grades  of  SSgt. 
MSgt and CMSgt rests with the AF/DP. 

98001 66 

.. . . . . . . . .. . 

PABLE 6 
MNIMUM ELIGIBILITY REQUIREMENTS 

 

B 

1 

.

.

A 

If the promo- 
tion is to the 
grade of 

and the PAFSC as of 
the cutoff date le at 
the 

- 

~~ 

~~ 

5-&ill  levelor 3-skill 
level when no 5 level ex 
isb in the AFSC (see 
mota 3). 

IR PROMOTIC 

(seenote 1) 

C 

I) 

~ 

~~ 

mnd  the time in 
current grade 
computed a s  
of the first d a y  
of the month 
before the 
month in 
which promo- 
tions normally 
are made in 
the cycle is 
lot applicable 
see paragraph 
13 for require- 
nents) 

and the 
TAFMS as of 
the first day of 
the last month 
of the promo- 
tion cycle is 
(see note 2) 

1 year (see 
paragraph 13 
for 
other TIS or TIC 
requirements) 

n 

E 

F 

and 

then 

the airman is eli- 
gible for promo- 
tie; provided he 
or aha is recom- 
mended, in w r i t  
ing, by the promo- 
tion authority, 
wno serving on ac- 
tive duty in enliet- 
ed statue an of the 
PECll, and han 
served in continu- 
o u s  active duty 
until the effective 
date of promotion 
and is not placed 
into a condition 
tisted under table 
2 on or a f b r  the 
PECD. Member 
mustbe in PES 
rode X on the ef- 
fective date ofpro- 
motion (see note 
0. 

Wgt (see note 6) 
rsgt (see note 
9 
US@ (see note 
i) 
5MSgt 

- 

7 level 

i  months' 
8 months 

'4 months 

3 years 
5 years 

3 years 

f or 9 level 

0 months 

11 years 

bas 8 years'cu- 
nulative enlist- 
,d service 
TEMSD) credit 
lble for basic pay 
Bee  note 6) 

98001 66 
. . . . . . . . . . . . .