RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2003-00059
                                       INDEX CODE:  129.04
      XXXXXXXXXXXXXXXX                  COUNSEL: NONE

      XXXXXXXXXXX                            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be retired in the grade of master sergeant (E-7).
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APPLICANT CONTENDS THAT:

He served in the grade of master sergeant (MSgt) from 1 October  1974  to  3
December 1974; therefore, he should be retired  in  that  grade.   He  knows
another individual in his same career  field  who  retired  under  the  same
circumstances and was able to retain his grade of MSgt.

In support of his application, the applicant provides a personal  statement;
a copy of his promotion order and  promotion  list;  a  copy  of  the  AFMPC
message disapproving his service  commitment  waiver;  and  a  copy  of  his
retirement action notification.  The applicant’s complete  submission,  with
attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 31 May 1955, the applicant enlisted in the Air Force at  the  age  of  17
for a period of  four  years  in  the  rank  of  airman  basic  (E-1).   The
applicant  was  progressively  promoted  to  the  rank  of  master  sergeant
effective and with a date of rank of 1 October 1974.  On 1 October 1974,  he
signed an AF Form  1160,  Application  for  Voluntary  Retirement,  with  an
effective date of 1 June 1975.  The applicant was demoted to  the  permanent
grade of technical sergeant effective 3 December 1974 with a  date  of  rank
of 1 July 1969.  The applicant retired effective 1 June 1975  in  the  grade
of technical sergeant.  He had served 20 years and 1 day of active  service.

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AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial.  It is DPPPWB opinion  that  the  applicant’s
request should be dismissed under the equitable doctrine  of  laches,  which
denies relief to one who has unreasonably and inexcusably delayed  asserting
a claim.  In addition, DPPPWB states the applicant’s case should  be  denied
because he voluntarily refused his promotion to MSgt.   DPPPWB  states  that
the  applicant  was  selected  for  promotion  to  MSgt  during  cycle  75A7
(applicant pinned-on rank and  was  later  demoted  due  to  his  retirement
request) and again during cycle  75B7.   The  applicant  did  not  pull  his
retirement papers nor extend his retirement date;  therefore,  refusing  his
second selection to MSgt.  The AFPC/DPPPWB evaluation is at Exhibit C.

AFPC/DPPRRP recommends denying the applicant’s request.   In  accordance  to
Section 8961,  Title  10,  United  States  Code  (USC),  the  applicant  was
correctly retired in the grade of technical sergeant, which  was  the  grade
he held on the date of his retirement.  DPPRRP recommends the  Secretary  of
the Air Force Personnel Council (SAFPC) make a determination as  to  whether
the applicant  served  satisfactorily  in  the  higher  grade  of  MSgt  for
advancement purposes under Section  8964,  Title  10,  USC.   Section  8964,
Title 10 USC allows the advancement of enlisted members on the retired  list
(when their active service plus  service  on  the  retired  list  totals  30
years) to the highest grade held in  which  they  served  satisfactorily  on
active duty as determined by the Secretary of the  Air  Force.   The  DPPRRP
evaluation is at Exhibit D.

The SAFPC Legal Advisor concurs with DPPPWB that denial of  the  applicant’s
request is appropriate since he voluntarily refused promotion to MSgt.

In response to DPPRRP’s request for review, the SAFPC Legal  Advisor  states
that because the applicant was voluntarily demoted  following  his  decision
to retire, rather than comply with the 2-year time-in-grade requirement,  he
is not entitled to consideration for advancement  on  the  retired  list  in
accordance with Section 8964, Title 10, USC.

The SAFPC Legal Advisor also reviewed the records of  the  individual  whose
circumstances the applicant claims are identical to his.   The  SAFPC  Legal
Advisor states that review of the cited individual’s records reveals he  was
the recipient of an administrative oversight to his advantage  which  in  no
way compels the same results for the applicant.   The  SAFPC  Legal  Advisor
goes on to state that unlike the applicant, personnel  officials  failed  to
note on the cited individual’s AF Form 1160 that he had failed  to  complete
the minimum time-in-service requirement.  It also does not appear  that  the
individual applied for a waiver of this  requirement  or  notify  processing
officials that he had an additional ten months to serve in order  to  retire
at his present grade.  It is the SAFPC  Legal  Advisor’s  opinion  that  the
cited individual’s good fortune is not a proper  basis  on  which  to  grant
relief to the  applicant.   The  SAFPC  Legal  Advisor’s  evaluation  is  at
Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant claims his circumstances are identical to the  circumstances
of the other  individual  he  used  as  an  example;  however,  the  other
individual was able to retire as a MSgt and his  waiver  was  disapproved.
The applicant attached copies of his performance reports received while he
held a position as an evaluator on the Strategic Air  Command  Maintenance
Standardization Evaluation Team, claiming the position required the  grade
of a MSgt and he was chosen for it because of his expertise.

In response to the SAFPC legal review, the  applicant  comments  that  the
same regulations should apply to both him and the  other  individual  he’s
comparing his records to.  Since the other individual was able  to  retire
as a MSgt at ten months short of completing his service  commitment,  then
he should also be allowed to retire as a MSgt with sixteen months short of
fulfilling his service  commitment.   The  applicant’s  rebuttals  are  at
Exhibit G.

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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.   Evidence   found   in   the
applicant’s records indicates he signed an AF  Form  1160,  Application  for
Voluntary Retirement, on 1 October 1974, prior to  fulfilling  his  required
service retainability of 24 months for promotion to  master  sergeant.   His
decision made  him  ineligible  to  retain  his  promotion.   The  applicant
requested a  waiver  of  his  time-in-grade  requirement;  however,  it  was
disapproved on 31 October 1974.  Accordingly, he was  demoted  to  technical
sergeant.  We note the applicant  was  again  considered  and  selected  for
promotion to master sergeant on  9  January  1975;  however,  the  applicant
declined the promotion.  The applicant asserts he  is  aware  of  a  similar
situation where a military member was allowed to maintain his  promotion  to
master sergeant without fulfilling his 24-month service  obligation.   After
reviewing the case file of the other military member, it  appears  personnel
officials failed to note that individual’s failure to complete the  required
time-in-service requirement.  However, we agree with  the  Air  Force  legal
advisor, that this oversight is not a proper basis on which to grant  relief
to the applicant.  The fact that personnel officials  incorrectly  processed
one other military member’s retirement does not, in our opinion,  provide  a
basis for retroactively promoting the applicant.  We find  the  consequences
of the applicant’s decisions were consistent  with  Air  Force  policies  in
effect at that time.   No  evidence  has  been  provided  showing  that  the
applicant was miscounseled or that his decision to retire  was  in  any  way
coerced.  Furthermore, there was no guarantee  that  if  he  applied  for  a
service commitment waiver, it  would  have  been  approved.   Therefore,  we
agree the assessment by the Air Force offices of primary responsibility  and
find no basis on which to favorably consider this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of 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.

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The following members of the Board considered this application in  Executive
Session on 23 July 2003 and 3 February 2004, under the provisions of AFI 36-
2603:

            Mr. Robert S. Boyd, Panel Chair
            Mr. Laurence M. Groner, Member
            Mr. Mike Novel, Member


The following documentary evidence for AFBCMR  Docket  Number  BC-2003-00059
was considered:

      Exhibit A.  DD Form 149, dated 30 Dec 02, with attachments.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPPWB, dated 13 Feb 03.
      Exhibit D.  Letter, AFPC/DPPRRP, dated 7 Mar 03.
      Exhibit E.  Letter, SAFPC, dated 24 Jun 03.
      Exhibit F.  Letter, SAF/MRBR, dated 14 Mar 03.
      Exhibit G.  Applicant’s Rebuttal, undated.




                                  ROBERT S. BOYD
                                                   Panel Chair