RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02216
            INDEX CODE: 136.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to indicate he retired at the highest  grade  held,
which was master sergeant.

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APPLICANT CONTENDS THAT:

The reasons the applicant believes the records to be in error or unjust  and
the evidence submitted in support of the appeal is at Exhibit A.

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STATEMENT OF FACTS:

The relevant facts  pertaining  to  this  application,  extracted  from  the
applicant's military records, are contained in the letter  prepared  by  the
appropriate office of the Air Force.   Accordingly,  there  is  no  need  to
recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Retirements Branch, AFPC/DPPRR,  reviewed  the  application  and  states
that Section 8961, Title 10, United States Code 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.”  In the applicant’s case,  the  grade  was  technical  sergeant
(TSgt).  They point out that the retirement  regulation  in  effect  at  the
time of applicant’s retirement (AFR 35-7) reiterated in Chapter 7, the  fact
that enlisted members retire in the grade held on retirement.

They state that action was initiated to obtain  a  determination  under  the
provisions of Section 8964, Title 10, United States Code for the purpose  of
his possible advancement to the grade of MSgt on the Retired  List.   By  15
February 1991 Secretarial Memorandum, the Secretary of the Air  Force  found
that applicant did serve satisfactorily in the higher grade of  MSgt  within
the meaning of Section 8964 and directed member’s advancement to that  grade
on the Retired List  effective  the  date  of  completion  of  all  required
service.  They state, effective 1 December 2000 applicant will  be  advanced
to the grade of MSgt on the USAF Retired List due to  the  fact  his  active
service plus service on the retired list will total 30 years on 30  November
2000.

They recommend denial and state that no error or injustices occurred in  the
retirement process, grade determination or advancement action of  applicant.
 They state the following:

    a.  In  accordance  with  the  provisions  of  law,  the  applicant  was
correctly retired in the grade of TSgt, which was the grade he held  on  the
date of his retirement.  They state that there is an  advancement  statement
on  applicant’s  retirement  orders.   They   state   the   provisions   for
advancement of enlisted members are quite specific and the only date he  may
be legally advanced at is the date on which he will have completed 30  years
active service plus service  on  the  retired  list.   They  note  that  the
advancement date will not occur until 1 December 2000.

    b.  They further state that, in addition, applicant was not eligible  to
receive retired pay in the grade of MSgt under the  Tower  Amendment.   They
state that this law stated in part that  a  retiree  may  not  receive  less
retirement pay than he would have received had he  retired  at  any  earlier
time with least 20 years of  service.   They  state  that  in  the  case  of
members who were reduced in grade but were eligible  for  retirement  at  an
earlier date in the higher grade, a statement would have been added  to  the
member’s retirement order.  In this case, the applicant was reduced in  rank
prior to completing required  active  service  for  retirement  (20  years);
therefore, no error or injustices occurred regarding  his  retirement  under
the Tower Amendment.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 15 February 1999, a  complete  copy  of  the  Air  Force  evaluation  was
forwarded to the applicant or review and response.   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 not timely filed; however, it is in  the  interest
of justice to excuse the failure to timely file.

3.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.  After reviewing the  evidence  of
record, we believe that the applicant should be  retired  in  the  grade  of
master sergeant.  While applicant’s  demotion  to  the  grade  of  technical
sergeant may have been in accordance  with  the  applicable  regulation,  we
find the action to deny him retirement in the higher grade unjust.  In  this
respect, we note that the applicant did not lose the required weight  during
January 1990 to May 1990; however, he was only five pounds over his  maximum
allowable weight (MAW).  We also note that he may  not  have  been  provided
with the proper diet counseling prior  to  entering  the  Weight  Management
Program (WMP); and, that at the time of his demotion on  17  July  1990,  he
weighed-in at his MAW.  In addition to the  above,  it  is  noted  that  the
applicant had served in the grade of master sergeant for  approximately  two
years, his performance was consistently classified as  outstanding;  and  at
the time of his demotion, he had served 19 years  and  7  months  of  active
service.  As a final matter, we note the calculation that retirement in  the
lower grade resulted in a loss of approximately  $3,000.00  in  retired  pay
per year.  In view of the above circumstance, we believe it would be  unduly
harsh to  deny  applicant  retirement  in  the  grade  of  master  sergeant.
Therefore, we recommend his records be corrected  to  the  extent  indicated
below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

    a.  He was promoted to the grade of master sergeant effective  and  with
date of rank of 30 June 1991.

    b.  On 1 July 1991, he was retired for length of service  in  the  grade
of master sergeant.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 17 June 1999, under the provisions of AFI 36-2603:



              Mr. Terry A. Yonkers, Panel Chair
              Mrs. Margaret A. Zook, Member
              Ms. Leta L. O’Connor, Member
              Ms. Phyllis L. Spence, Examiner (without vote)

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

   Exhibit A.  DD Form 149, dated 8 Jun 98.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRR, dated 3 Feb 99.
   Exhibit D.  Letter, AFBCMR, dated 15 Feb 99.




                                   TERRY A. YONKERS
                                   Panel Chair




AFBCMR 98-02216




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 APPLICANT be corrected to show that:

             a.  He was promoted to the grade of master sergeant effective
and with date of rank of  30 June 1991.

             b.  On 1 July 1991, he was retired for length of service in
the grade of master sergeant.






         JOE G. LINEBERGER

         Director

         Air Force Review Boards Agency