RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01293
                 INDEX CODE 133.03
                 COUNSEL:  Gary R. Myers

                 HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

He be retired in the grade of master sergeant (MSgt).
_________________________________________________________________

APPLICANT CONTENDS THAT:

This was a case  of  selective  prosecution  and  discrimination.  The
disparity between his treatment versus that of his four other  cohorts
was so grossly biased against him that one must consider  the  graphic
lack of equal protection. He brought this disparity to  the  attention
of command and at the highest  levels  this  disparity  was  knowingly
ignored. The lack of continuing central  jurisdiction  over  the  1992
event and subsequent dispersal  of  that  jurisdiction  to  splintered
commands  [because  the  Office  of   Special   Investigations   (OSI)
investigation took place in 1997]  gave  rise  to  this  inequity  and
denial  of  equal  protection.  His  retirement,  although  ostensibly
voluntary, was in fact forced by a series of circumstances that  began
in 1992 during a prior enlistment. His demotion to technical  sergeant
(TSgt) left him nothing to appeal  so  he  chose  not  to  appeal  and
submitted a voluntary retirement request.

A copy of applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

In the  beginning  of  the  period  in  question,  the  applicant  was
stationed at Castle Air Force Base, CA.  After testing  for  the  93A7
cycle, he was selected for promotion to the grade of MSgt with a  date
of rank (DOR) of 1 June 1993. His performance reports  throughout  his
entire career reflect the highest ratings under both the old  and  new
evaluation systems.

According to the OSI Report of  Investigation  (ROI)  dated  9  August
1997, an investigation was initiated on 24  April  1997  following  an
anonymous complaint accusing the applicant and three  other  TSgts  of
cheating on their promotion examinations during the 93A7 testing cycle
(calendar year 1992) at Castle AFB, CA. The complaint alleged that the
TSgts shared prior test information in order to prepare for the  exam,
and that each person agreed to pass  along  test  questions  to  other
individuals after they tested for MSgt. Analysis of response  patterns
and increase in score averages neither confirmed  nor  ruled  out  the
possibility of cheating. On 29 April 1997,  after  rights  advisement,
the applicant admitted to cheating on the examination with three other
TSgts. One of the names mentioned by the applicant was  new,  bringing
the total number of suspects to five. After rights advisement, one  of
the other TSgts denied discussing exam material at any  time;  another
admitted  to  cheating;  another  declined  to  answer  questions  and
requested legal counsel, and another denied involvement and  requested
legal counsel. At this time, the applicant was assigned to the 6th Air
Refueling Wing (6ARW) at MacDill AFB, FL, and the other suspects  were
located at Altus AFB, OK; Travis AFB, CA; Scott AFB, IL;  and  McGuire
AFB, NJ. As one of the TSgts was under a separate OSI investigation at
Scott  AFB,  his  name  was  not  included  as  a  subject  for   this
investigation.

On 29  August  1997,  the  applicant  was  notified  of  the  squadron
commander’s intent to recommend demotion to  the  grade  of  technical
sergeant for failure to fulfill  NCO  responsibilities,  specifically,
his admitting to the OSI that he had cheated on  his  Weighted  Airman
Promotion System (WAPS) test for MSgt.

On 5 September 1997, after  consulting  with  counsel,  the  applicant
responded to the notification letter. On 24 October 1997, he requested
that the commander terminate the demotion process  and  allow  him  to
retire on 31 December 1997 in lieu of demotion. He advised that all of
the other offenders would be allowed to stay in the Air Force  for  24
years and retire as MSgts, and two would be promoted  to  Senior  MSgt
and  continue  their  careers.  He  asked  that,  in  light  of   this
information, the demotion action be reconsidered.

On 10 September 1997, the squadron commander stopped  demotion  action
based on the applicant’s request for retirement in  lieu  of  demotion
and forwarded the package to the retirement  authority.  However,  the
applicant’s request for retirement in lieu of demotion was denied.

On 15 December 1997, the demotion authority approved the  demotion  to
the grade of TSgt, effective and with a DOR of 15 December 1997.   The
applicant did not appeal the demotion action.

Applicant was honorably retired in the grade of TSgt on 1 January 1998
with 20 years, 7 months and 8 days of active duty.

Since the applicant had served on active duty in the higher  grade  of
MSgt from 1 June 1993 through 14 December 1997, an  advancement  grade
determination was required and accomplished at the time of applicant’s
request for retirement. On 26 January 1998, the Secretary of  the  Air
Force Personnel Council (SAF/PC) found that
the applicant did not serve satisfactorily in any  higher  grade  than
TSgt and would not be advanced under the provisions of  Section  8964,
Title 10, USC.
_________________________________________________________________

AIR FORCE EVALUATION:

The Chief, Test  Management  Section,  HQ  AFPC/DPPPWE,  reviewed  the
appeal  and  opined  that  the  commander   acted   appropriately   in
recommending  demotion   action.   The   applicant’s   misconduct   is
specifically prohibited by AFI 36-2605, para 5.13. Air  Force  members
who fail to comply with these prohibitions are subject  to  punishment
under Article 92, UCMJ,  for  violating  a  lawful  general  order  or
regulation. Denial is recommended.

A copy of the complete Air Force evaluation is at Exhibit C.

The Chief, Inquiries/AFBCMR Section, HQ  AFPC/DPPPWB,  also  evaluated
the case and indicates the demotion action taken against the applicant
was procedurally correct and there  is  no  evidence  there  were  any
irregularities or that the case was mishandled.

A copy of the complete Air Force evaluation is at Exhibit D.

The Retirements Ops Section, HQ AFPC/DPPRR, advises that there  is  no
provision of law that would allow an enlisted member to  retire  in  a
grade higher than the one in which he is serving on the  last  day  of
active duty. Title 10, USC, Section  8961,  states  in  part:  “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.” In the  applicant’s  case,  that
grade was TSgt.  No  injustices  or  irregularities  occurred  in  the
processing of his retirement request  and  advancement  determination.
Denial is recommended.

A copy of the complete Air Force evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the evaluations were forwarded  to  counsel  on  16
November 1998 for review and comment within 30 days.  As of this date,
no response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of  probable  error  or  injustice  to  warrant  partial
relief.  We wish to state unequivocally that  our  recommendation  for
partial relief does not constitute an exoneration  of  the  applicant,
nor should it be construed in any way that  this  Board  condones  his
grave misconduct.  We believe the demotion action was well-founded and
appropriate to the offense.   There  is  really  only  one  mitigating
factor in this case and that is apparently  all  the  other  offenders
were allowed to retain their grade  of  MSgt.   Their  cases  are  not
before us and it is  not  within  the  Board’s  purview  to  recommend
“punishment.”  As such, we normally would only render  judgment  based
on the evidence of the appeal being considered. We do not believe  the
demotion action should be voided and the applicant allowed  to  retire
in the grade of MSgt. We cannot undo the  regrettable  fact  that  the
other offenders apparently paid a very low price, if  any,  for  their
actions. However, on the basis  of  equity  we  believe  it  would  be
appropriate  to  lessen  the  permanent  effect  of  the   applicant’s
demotion. Section 8964, Title 10, USC, 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
satisfactorily served on active duty (as determined by the  SAF)  when
their active service plus service on the retired list totals 30 years.
While the applicant was found not to have served satisfactorily in the
grade of MSgt, we believe this determination should be amended for the
reasons discussed above and this we so recommend.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that, on 26 January  1998,
the Secretary of the Air Force found that he did serve  satisfactorily
in the higher grade of master sergeant (E-7)  within  the  meaning  of
Section 8964, Title 10, USC, and directed the member’s advancement  to
that grade on the Retired List effective the date of completion of all
required service.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 29 July 1999, under the  provisions  of  AFI  36-
2603:

                  Mr. Oscar A. Goldfarb, Panel Chair
                  Mr. Patrick R. Wheeler, Member
                  Mr. Charlie E. Williams Jr., Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 6 May 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPWE, dated 24 Sep 98.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 28 Sep 98.
   Exhibit E.  Letter, HQ AFPC/DPPRR, dated 2 Nov 98, w/atch.
   Exhibit F.  Letter, AFBCMR, dated 16 Nov 98.




                                   OSCAR A. GOLDFARB
                                   Panel Chair



AFBCMR 98-01293




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to              , be corrected to show that, on 26
January 1998, the Secretary of the Air Force found that he did serve
satisfactorily in the higher grade of master sergeant (E-7) within the
meaning of Section 8964, Title 10, USC, and directed the member’s
advancement to that grade on the Retired List effective the date of
completion of all required service.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency