RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00767
            INDEX CODE:  129.04

            COUNSEL:  None

            HEARING DESIRED:  No

APPLICANT REQUESTS THAT:

His retirement pension be adjusted to the rate of highest grade held
while on active duty (technical sergeant).

APPLICANT CONTENDS THAT:

In accordance with AFI 36-3203, he is entitled to the  highest  held
rank of technical sergeant retirement pay.  His 10th anniversary  is
31 Jan 99.

In support of his appeal, the applicant provided a copy of  AF  Form
2652 (Retirement Special Order-Service or Age).

Applicant’s complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date  (TAFMSD)
was 20 Jan 69.

Applicant’s Enlisted Performance Report  (EPR)  profile  since  1978
reflects the following:

            PERIOD ENDING          OVERALL EVALUATION

             15 Jul 78                     9
             15 Jul 79                     8
             12 Apr 80                     8
             27 Aug 80                     9
             27 Aug 81                     9
             16 Mar 82                     8
             16 Jul 82                     9
             16 Jul 83                     9
             16 Jul 84                     9
             16 Jul 85                     8
              7 Dec 85                     7 (Referral Report)
              4 Jun 86                     9
              4 Jun 87                     9
              4 Jun 88                     9

On 17 Sep 85, applicant was notified of his  commander’s  intent  to
impose nonjudicial punishment upon him for failure to go at the time
prescribed to his appointed place of duty (Hanger 1000).

On 23 Sep 85, after consulting with counsel,  applicant  waived  his
right to a trial by court-martial, requested a  personal  appearance
and did not submit a written presentation.

On 24 Sep 85, he was found guilty by his commander who  imposed  the
following  punishment:   reduction  from  the  grade  of   technical
sergeant to the grade of staff sergeant, forfeiture of  $150  pay  a
month for one month, and 30 days of extra duties but  the  execution
of the portion of the punishment which provided for reduction to the
grade of staff sergeant was suspended until 23 Mar 86 at which time,
unless sooner vacated, it would be remitted without further action.

Applicant did not appeal the punishment.  The Article 15  was  filed
in his Unfavorable Information File (UIF).

On 22 Oct 85, applicant was notified of his  commander’s  intent  to
vacate the suspension of the nonjudicial punishment because  of  his
failure to go on 22 Oct 85 at the time prescribed to  his  appointed
place of duty (Hanger 1000).

On 1 Nov 85, after consulting with counsel,  applicant  requested  a
personal appearance and did submit a written presentation.

On 4 Nov 85, he was found guilty by his commander  who  vacated  the
suspended nonjudicial punishment and reduced the  applicant  to  the
grade of staff sergeant with a new date of rank (DOR) of 24 Sep 85.

On 3 Feb 88, applicant applied for retirement  to  be  effective  on
1 Feb 89.  The application was approved  on  21 Mar  88  by  Special
Order AC-.

On 14 Mar 88, the Secretary of the Air Force, through the  Secretary
of the Air Force Personnel Council  (SAF/PC),  determined  that  the
applicant did not serve satisfactorily in any  higher  grade  within
the meaning of Section 8964, Title 10, United States Code (USC).

On 1 Feb 89, the applicant retired under the provisions of AFR  35-7
(Voluntary-Retirement For Years of Service Established By Law)  with
an honorable characterization of  service  in  the  grade  of  staff
sergeant.  He was credited with 20  years  and  11  days  of  active
service.

AIR FORCE EVALUATION:

The Special Programs Section, AFPC/DPPRRP, reviewed this application
and indicated that Section 8961,  Title  10,  USC,  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,
that grade was staff sergeant.  Section 8964, Title 10, USC,  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.  This  advancement  action  would  occur
when a member’s active service plus  service  on  the  retired  list
totals 30  years.   As  a  matter  of  information,  the  retirement
regulation in effect at the time of applicant’s retirement (AFR  35-
7, Table 3-2, Rule 2) provided guidance  to  the  consolidated  base
personnel office (CBPO) to obtain documents for use by the SAF/PC in
making a grade determination for advancement consideration.

DPPRRP states that the law which allows for advancement of  enlisted
members of the Air Force when their active service plus  service  on
the retired list totals 30 years is very specific in its application
and intent.  On 14 Mar 88, the SAF/PC made  the  determination  that
the applicant did not serve satisfactorily on  active  duty  in  any
grade higher than that  in  which  he  was  retired-staff  sergeant.
There  are  no  other  provisions  of  law  that  would  allow   for
advancement of enlisted members.  All criteria of the pertinent  law
(Section 8964) have  been  met  in  this  regard  and  no  error  or
injustices  occurred  in  the  retirement  grade  determination   or
advancement action.  In accordance with the provisions of  law,  the
applicant was correctly retired in  the  grade  of  staff  sergeant,
which was the grade he held on the date of his  retirement.   He  is
not entitled to advancement to any higher grade as the Secretary has
determined that he has not served satisfactorily in any higher grade
while on active  duty.   DPPRRP  recommends  denial  of  applicant’s
request.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and provided a  two-page
response (see Exhibit E).

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.     Insufficient  relevant  evidence  has   been   presented   to
demonstrate the existence of probable error or injustice.   After  a
thorough  review  of  the  evidence  of   record   and   applicant’s
submission, we are not persuaded that his retirement pension  should
be adjusted to the rate of highest grade held while on active  duty.
His contentions are duly  noted;  however,  we  do  not  find  these
uncorroborated  assertions,  in  and  by  themselves,   sufficiently
persuasive to override the rationale provided by the Air Force.   We
therefore agree with the recommendation of the Air Force  and  adopt
the rationale expressed as the  basis  for  our  decision  that  the
applicant has failed to sustain his  burden  that  he  has  suffered
either an error or an injustice.  Therefore, we find  no  compelling
basis to recommend granting the relief sought.

THE BOARD DETERMINES THAT:

The applicant be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable material error  or  injustice;
that the application was denied without a personal  appearance;  and
that the application will only be reconsidered upon  the  submission
of newly discovered  relevant  evidence  not  considered  with  this
application.

The following members of the Board considered  this  application  in
Executive Session on 18 April 2000,  under  the  provisions  of  Air
Force Instruction 36-2603:

                  Mr. Joseph G. Diamond, Panel Chair
                  Mr. Lawrence R. Leehy, Member
                  Mr. William H. Anderson, Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 31 Jan 99, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRRP, dated 18 May 99, w/atchs.
     Exhibit D.  Letter, AFBCMR, dated 1 Jun 99.
     Exhibit E.  Letter fr applicant, dated 30 Jun 99.




                                   JOSEPH G. DIAMOND
                                   Panel Chair
                         DEPARTMENT OF THE AIR FORCE
                   HEADQUARTERS AIR FORCE PERSONNEL CENTER
                        RANDOLPH AIR FORCE BASE TEXAS



MEMORANDUM FOR AFBCMR  18 May 1999

FROM: HQ AFPC/DPPRRP
550 C Street West, Suite 11
Randolph AFB TX 78150-4713

SUBJECT:    Application for Correction of Military Records

Reference;

      Requested Action.  Applicant is a retired Air Force staff sergeant
(SSgt) who is requesting that his retirement pension be adjusted to the
rate of highest grade held while on active duty (Technical Sergeant
(TSgt)).

      Basis for Request.  Applicant contends in accordance with AFl 36-3203
(Air Force Regulation) on his tenth anniversary (31 Jan 99), he is entitled
to retirement pay in highest held rank of technical sergeant (E-6).

      Facts.

        a. Applicant was reduced to the grade of SSgt for failure to go at
the time prescribed to his appointed place of duty (Atch 1).


        b. Applicant applied for retirement on 3 Feb 88 to be effective on
I Feb 89 (Atch 2).  Application was approved on 21 Mar 88 by Special Order
XXXX (Atch 3).  Section 8961, Title 10, United States Code (Atch 4) 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, that grade was
staff sergeant (SSgt).


        c. Section 8964, Title IO, United States Code (Atch 5) 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.  This advancement action would occur when a member's active service
plus service on the retired list totals 30 years.  The Secretary of the Air
Force has delegated this authority to the Secretary of the Air Force
Personnel Council (SAF/PC).  On 14 Mar 88 (Atch 6), the SAF/PC made the
determination that the applicant did not serve satisfactorily on active
duty in any grade higher than that in which he was retired-staff sergeant
(SSgt).  As a matter of information, the retirement regulation in effect at
the time of applicant's retirement (AFR 35-7, Table 3-2, Rule 2) (Atch 7),
provided guidance to the Consolidated Base Personnel Office (CBPO) to
obtain documents for use by the SAF/PC in making a grade determination for
advancement consideration.

      Recommendation.  Denial.

        a.The law which allows for advancement of enlisted members of the
Air Force when their active service plus service on the retired list totals
30 years is very specific in its application and intent.  On 14 Mar 88, the
SAF/PC made the determination that the applicant did not serve
satisfactorily on active duty in any grade higher than that in which he was
retired-staff sergeant (SSgt).


        b. There are no other provisions of law that would allow for
advancement of enlisted members.  All criteria of the pertinent law
(Section 8964) have been met in this regard and no error or injustices
occurred in the retirement grade determination or advancement action.


        c. In accordance with the provisions of law, the applicant was
correctly). retired in the grade of staff sergeant (SSgt), which was the
grade he held on the date of his retirement.  He is not entitled to
advancement to any higher grade as the Secretary has determined that he has
not served satisfactorily in any higher grade while on active duty.






                                       JOHN SMITH, DAFC
                                       Special Programs Section
                                       Directorate of Personnel Program
                                       Management

Attachments
I . AF Form 366, 4 Nov 85
2.    AF Form 1160, 3 Feb 88
3.    Special Order XXXXX, 21 Mar 88
4.    Section 8961, Title 10, U.S.C.
5.    Section 8964, Title 10, U.S.C.
6.    SAF/PC Memorandum, 14 Mar 88
7.    AFR 35-7, Table 3-2, Rule 2