RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 98-02217
INDEX NUMBER: 131.09
COUNSEL: MR. FRED L. BAUER
HEARING DESIRED: YES
___________________________________________________________________
APPLICANT REQUESTS THAT:
He be given direct promotion to the grades of senior master sergeant
(E-8) and chief master sergeant (E-9), backdated as appropriate, with
back pay and allowances.
___________________________________________________________________
APPLICANT CONTENDS THAT:
He cannot be properly considered for promotion because of his unjust
imprisonment.
Counsel contends that the applicant needs the Air Force to rectify the
damage that was done to his career, through no fault of his own, by an
imperfect justice system and “do the right thing” and give him the
promotions he would without any doubt have made if he hadn’t been
falsely accused. Unfortunately, the hole in the applicant’s record
that resulted from his confinement (there is no reporting from April
of 1993 through August 1996) means that he can’t compete for promotion
in the normal fashion.
In support of his appeal, applicant submitted counsel’s expanded
comments and documentation associated with the dismissal of the court-
martial charges, and supplemental promotion considerations. He also
provided five letters of recommendation from his wing and squadron
commanders, supervisors, and a co-worker. (Exhibit A)
___________________________________________________________________
STATEMENT OF FACTS:
On 2 May 1978, applicant contracted his initial enlistment in the
Regular Air Force. He served on continuous active duty and entered
his last enlistment on 22 June 1992. He was progressively promoted to
the grade of master sergeant, with a date of rank of 1 May 1992.
A resume of applicant’s APRs/EPRs contained in his Headquarters United
States Air Force Selection Folder follows:
PERIOD CLOSING OVERALL EVALUATION
15 Aug 88 9
15 Aug 89 9
30 Apr 90 (EPR) 5
30 Apr 91 5
30 Apr 92 5
30 Apr 93 5
1 May 93 thru 11 Apr 96 - no report available for
administrative reasons
9 Aug 96 5
9 Aug 97 5
The following information was obtained from documentation by the
applicant.
The applicant was tried by General Court-Martial and convicted of
sodomy and indecent acts with a child. The sentence adjudged on
1 October 1993, sentenced him to a dishonorable discharge, confinement
for eight years, total forfeitures, and reduction in grade to airman
basic (E-1). On 27 February 1996, the United States Air Force Court
of Criminal Appeals set aside the findings of guilty and the sentence
and ordered the charges dismissed. However, on 10 April 1996, The
Judge Advocate General certified the case to the United States Court
of Appeals for the Armed Forces. On 22 January 1997, the United
States Court of Appeals for the Armed Forces affirmed the decision of
the Air Force Court of Criminal Appeals. Per General Court-Martial
Order No. 124, dated 7 May 1997, the charges were dismissed and all
rights, privileges, and property of which the applicant had been
deprived by virtue of the findings of guilty and the sentence were
restored.
Applicant returned to duty on 12 April 1996. Based on his date of
rank to the grade of master sergeant, 1 May 1992, he was eligible for
promotion consideration to the grade of senior master sergeant for
cycles 95S8, 95E8, 96E8, and 97E8. He was provided supplemental
promotion consideration for all cycles for which he was eligible. He
was not selected for promotion to senior master sergeant.
On 30 December 1997, applicant requested voluntary retirement to be
effective 1 August 1998. On 31 July 1998, he was released from active
duty and retired effective 1 August 1998, in the grade of master
sergeant (E-7). At the time of his retirement, he was credited with
20 years, 2 months, and 29 days of active service for retirement.
___________________________________________________________________
AIR FORCE EVALUATION:
The Enlisted Promotion and Military Testing Branch, AFPC/DPPPWB,
recommended denial of applicant’s request for an automatic promotion
to senior master sergeant and chief master sergeant. DPPPWB stated
that the applicant was provided supplemental promotion consideration
for all previous cycles for which he was eligible. He was considered
in accordance with the policies and procedures approved by senior
management, to include the Secretary. While the applicant believes he
would have been promoted had he not been confined, this is
speculation. There is no way of knowing if his score would have been
high enough for his selection to senior master sergeant. The
applicant missed promotion by 90.37 points for the 97E8 cycle and
72.22 points for the 98E8 cycle.
While this situation is unique, applicant was provided fair and
equitable promotion consideration in accordance with existing policy
and procedures and not selected. He was provided supplemental
promotion consideration using the same procedures that are afforded to
others in similar circumstances.
The complete evaluation is at Exhibit C.
___________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Counsel stated that the “unique” situation of the applicant, that he
spent three years in prison for a crime he did not commit and should
not have been convicted of (a fact recognized unanimously by both
military and appellate courts), is one that routine handling by
ordinary promotion systems is not suited for. Counsel further stated
that he has established that the likelihood of applicant being
promoted to E-8 and even E-9 was extraordinarily high. Clearly all
the people who worked with him recognized the terrible injustice he
suffered, the potential he had, and his extraordinary duty performance
he delivered even after his release from prison.
Counsel’s response and documentation reflecting applicant’s receipt of
the award of the Meritorious Service Medal at the time of his
retirement are at Exhibit E.
___________________________________________________________________
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 injustice
a. We have noted the applicant’s overall record of outstanding
performance prior to his court-martial, which resulted in his
confinement, as well as after his return to duty. We have also noted
the letters of support submitted in his behalf from members of his
chain of command attesting to his outstanding performance and
professionalism after his return to duty. In addition, and more
importantly, because of the substantial gap in his recorded duty
performance as a result of his confinement we do not believe it was
possible for the applicant to receive fair and equitable promotion
consideration. After careful consideration of the unique
circumstances of this case, we find it is possible that the applicant
has been the victim of an injustice and that some form of relief is
warranted.
b. The applicant contends that he would have been promoted to
senior master sergeant and chief master sergeant when first eligible
had it not been for his confinement. Even though the applicant’s
record is a good one, so are the records of many other senior NCOs who
are not selected for promotion to these grades. There is nothing in
his submission which substantiates his assertions of assured
promotions. Since we have no way of knowing for sure if or when the
applicant would have been promoted, to rectify any possible promotion
injustice, the records should be corrected to show he was promoted to
the grade of senior master sergeant and retired in that grade. In our
estimation, this action affords the applicant fitting and proper
relief based on the evidence presented here. We do not believe a
recommendation for a further promotion to chief master sergeant is
appropriate because we are not persuaded that the applicant would have
attained that grade in view of the keen competition for the extremely
limited opportunities for such a promotion.
c. Accordingly, the records should be corrected to the extent
indicated below.
___________________________________________________________________
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 senior master sergeant (E-8)
effective and with a date of rank of 28 July 1998.
b. On 1 August 1998, he retired in the grade of senior master
sergeant.
___________________________________________________________________
The following members of the Board considered this application in
Executive Session on 9 February 1999, under the provisions of AFI 36-
2603:
Mr. Richard A. Peterson, Panel Chair
Mr. Terry A. Yonkers, Member
Ms. Peggy E. Gordon, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 13 Apr 98, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPPWB, dated 24 Aug 98.
Exhibit D. Letter, SAF/MIBR, dated 7 Sep 98.
Exhibit E. Letter from Counsel, dated 31 Oct 98, w/atchs.
RICHARD A. PETERSON
Panel Chair
INDEX CODE: 131.09
AFBCMR 98-02217
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 senior master sergeant
(E-8) effective and with a date of rank of 28 July 1998.
b. On 1 August 1998, he retired in the grade of senior
master sergeant.
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
AF | BCMR | CY2006 | BC-2005-02650
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