AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  98-01203 
COUNSEL:  NONE 
HEARING:  NO 

The  applicant  requests  that  he  be  reinstated  to  the  grade  of 
staff sergeant (E-5) until the year 2002.  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 cbrrective 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 Ms. Patricia J. Zarodkiewicz, Mr. William H. 
Anderson, and Mr.  Joseph A. Roj considered this application on 
11 February 1999  in accordance with the provisions of Air Force 
Instruction 36-2603, and the governing statute, 10, U.S.C. 1552. 

n 

Exhibits : 
A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C.  Advisory Opinions 
D.  AFBCMR Ltr Forwarding Advisory Opinions 

DEPARTMENT OF THE AIR  FORCE 
A I R   FORCE  L E G A L  SERVICES  AGENCY  ( A F L S A )  

MEMORANDUM FOR AFBCMR 

FROM:  AFLSA/JAJM (Maj Hogan) 
112 Luke Avenue, Room 343 
Bolling AFB, DC 20332-8000 

23 Jun98 

Applicant’s request:  In an application dated 26 Apr 98, the applicant requests that he be 

reinstated to the rank of E-5 until the year 2002.  On 9 Jan 92, the applicant pled and was found 
guilty of stealing and cashing a check belonging to his wife as well as forging his wife’s 
signature on the check at a special court-martial held at Davis Monthan AFB, Arizona.  The 
applicant was sentenced to 6 months confinement, reduction to the grade of E-3 and forfeiture of 
$200 pay per month for six months.  The applicant was subsequently allowed to retire in the 
grade of E-3 after saving his court-martial sentence.  The application is past the three year 
statute of limitations provided by 10 U.S.C.  1552(b) and the applicant provides no justification 
for filing the application beyond the statute of limitations. 

Facts of military justice action:  The applicant was assigned to the 836‘h CES located at 
Davis Monthan AFB, Arizona.  In February 199 1, the applicant was a Master Sergeant.  On 12 
Feb 91, the applicant was punished under Article 15, UCMJ, for drunk driving in violation of 
Article 11 1 of the UCMJ.  The applicant’s punishment consisted of forfeitures of $650.00 pay 
per month for two months, and a suspended reduction to the grade of TSgt.  The applicant was 
also ordered not to drive on Davis Monthan AFB.  On 1 5 Mar 9 1, the suspended reduction to 
TSgt was vacated as a result of the applicant driving on Davis Monthan AFB in violation of the 
order. On 1 3 May 1991, the applicant was apprehended for drunk driving on Davis Monthan 
AFB.  The applicant also violated the order not to drive on Davis Monthan AFB.  For these 
offenses, the applicant was served nonjudicial punishment which consisted of being reduced to 
the grade of E-5 and suspended forfeitures of $300 pay per month for two months. 

_ _  

On 9 Jan 92, the applicant pled guilty to stealing a US. Treasury check in the amount of 

$882.64 which was the property of  hiswi 
he applicant also pled guilty to 
forging his wife’s signature on the check and unlawfblly uttering the check.  As mentioned 
above, the applicant was reduced to the grade of E-3 as part of his court-martial sentence.  The 
applicant retired from active duty with an honorable discharge on 3 1 Aug 92 in the grade of E-3. 

Applicant’s contentions: The applicant believes he was court-martialed for what he 

believes to be a “civilian concern” and not the concern of the Air Force.  The applicant admits he 

forged a Social Security check which was addressed to his wife ( the check was for the benefit of 
the applicant's stepdaughter). The applicant believes he was unjustly court-martialed and that 
the rank of E-5, which was the rank he held prior to the court-martial, should be restored to him. 
The applicant claims he has repaid the full amount of the check he stole from his wife.  As a 
result, he believes he should be allowed to receive retired pay in the grade of E-5.  The applicant 
asserts he was approved for retirement and was placed on administrative hold two days prior to 
going on terminal leave and subsequently court-martialed. 

Discussion:  AFI 36-2603, para 4.1 states that the applicant has the burden of providing 
sufficient evidence of probable material error or injustice.  The applicant has failed to indicate 
any material error or injustice regarding his court-martial conviction.  The applicant admits that 
he forged the Social Security check.  He pled guilty at the court-martial.  The offense which the 
applicant committed was a serious offense and it was appropriate to try the applicant at a special 
court-martial for this misconduct. The court-martial sentence was fair and just especially when 
the applicant's past disciplinary history is taken into account. 

It should also be noted that according to his records the applicant will receive retired pay 

at the grade of E-7 beginning in the year 2002.  On 2 1 May 9 1, the SAF Personnel Council 
determined that the applicant served satisfactorily in the grade of E-7 within the meaning of 10 
USC 8964 and directed that he be advanced to that grade upon completion of "all required 
service," which would be 19 June 2002. The applicant has suffered no injustice as a result of his 
court-martial sentence.  It was an appropriate sentence for his offense.  Considering the 
applicant's disciplinary record, he was fortunate to be able to retire fiom the Air Force rather 
than being discharged. 

Recommendation: 
errors requiring correction. 
limitations or on its merits. 

After reviewing the available records, I conclude there are no legal 
The Board should either deny the application based on the statute of 

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

DEPARTMENT O F  THE AIR  F O R C E  

HEADQUARTERS A I R F O R C E   P E R S O N N E L C E N T E R  

RANDOLPH AIR  FORCE  BASE TEXAS 

MEMORANDUM FOR AFBCMR 
FROM: HQ AFPCDPPRR 

550 C Street West, Suite 11 
Randolph AFl3 TX 78150-4713 

SUBJECT: Application for Correction of Military Records 

21 Aug98 

Requested Action.  Applicant is a retired Air Force A1C who is requesting 

retirement in the grade of staff sergeant (SSgt). 

Basis for Reauest.  Applicant states he was court martialed in 1992,8 days prior to 

reaching 20 years of active service.  He was demoted to the grade of airman fist class 
(AlC) and allowed to retire.  Applicant contends the problems he had were not an Air 
Force concern, but a civil one.  He contends he was unjustly court martialed and his rank 
of staff sergeant (SSgt)  should be restored. 

Discussion. 

a.  We defer to the advisory submitted by AFLSNJAJM regarding the 

military justice action.  Our advisory will address the retirement process only. 

b. The applicant voluntarily applied to retire on 8 Jul92 to be effective 1 
Sep 92 (Atch 1).  Had the applicant not requested retirement, he would have separated on 
3 1 Aug 92 due to his having reached his high year of tenure.  The applicant’s request for 
retirement was approved on 13 Jul92 (Atch 2). 

c.  Section 8961, Title 10, United States Code (Atch 3) states:  “Unless 

entitled to a higher retired grade under some other provision of law, a Regular or Reserve 
of the Air For ce..... who retires other than for physical disability retires in the regular or 
reserve grade that he holds on the date of his retirement.’’  In the applicant’s case, the 
grade he held upon retirement was airman first class (AlC). 

d.  Section 8964, Title 10, United States Code (Atch 4) 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 
(SAFRC). 

e.  Since applicant had previously held a higher grade on active duty, a 
grade determination was accomplished on 21 May 91 (Atch 5 )  and the results of this 
grade determination were published by Special Order Number AC-0 15277 dated 28 Jul92 
(Atch 6).  Section 8964, Title 10, United States Code is very specific in its application. 
This provision of law allows retired enlisted members who are retired with less than 30 
years of active service to be advanced on the retired list to the highest grade in which they 
served on active duty satisfactorily (as determined by the Secretary of the Air Force) when 
their active service plus service on the retired list totals 30 years.  At the time of 
applicant’s retirement, he had served 20 years 2 months and  1 1 days of active service.  His 
advancement date to the grade of master sergeant will be 20 Jun 02. 

Recommendation. Denial. 

a.  In accordance with the provisions of law, the applicant was correctly 

retired in the grade of airman first class (AlC), 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 on 21 May 91 and the Secretary of the Air Force 
determined that applicant served satisfactorily in the grade of master sergeant (MSgt). 
There is an advancement statement on applicant’s retirement order which advances him to 
the grade of MSgt at the 30 year point (20 Jun 02). 

c.  No irregularities or injustices were discovered while reviewing the 

applicant’s retirement actions. 

%tirements  Branch 
Directorate of Personnel Program Management 

Attachments 
1.  AFForm 1160 
2.  DAF Special Order AC-014489 
3.  Section 8961, Title 10, U.S.C. 
4.  Section 8964, Title 10, U.S.C. 
5. SAF Memorandum, 21 May 91 
6.  DAF Special Order AC-015277