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