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