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AF | BCMR | CY2004 | BC-2004-01160
Original file (BC-2004-01160.DOC) Auto-classification: Approved


                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01160
            INDEX CODE:  131.09

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His retirement grade be  changed  from  technical  sergeant  (E-6)  to
master sergeant (E-7).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He believes the action of the Secretary of the Air Force  was  unjust.
His  records  throughout  his  career  reflect  he  not  only   served
satisfactorily but did so in an outstanding manner.  He  accepted  the
Article 15 not as an admission of guilt but chose  to  accept  it  and
retire to relieve his family  from  the  harassment  that  was  taking
place.

In  support  of  his  appeal,  the  applicant  provided  an   expanded
statement, documentation concerning the action of the Secretary of the
Air Force, an Article  15,  information  pertaining  to  his  military
service, and his separation documents.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 14 Jul 82 for a  period
of four years in the grade of  airman  basic.   He  was  progressively
promoted to the grade of master sergeant on 1 Sep 00.

On 9 Dec 03,  the  applicant  received  nonjudicial  punishment  under
Article 15 for being derelict in the  performance  of  his  duties  by
willfully failing to wear a helmet while operating a motorcycle on  16
Aug 03; with the intent to deceive, making false  official  statements
on 28 Aug 03 and 1 Oct 03; and, being drunk and disorderly on  16  Aug
03.  He was reduced from the grade of  master  sergeant  to  technical
sergeant, ordered to perform 30 days of extra duty,  and  reprimanded.
The applicant appealed  the  punishment  but  it  was  denied  by  the
appellate  authority.   On  19 Dec  03,  legal  authority  found   the
nonjudicial proceedings under Article 15 were legally sufficient.

On 23 Jan 04, the Secretary of the Air Force found the  applicant  did
not serve satisfactorily in any higher grade and would not be advanced
under the provisions of Section 8964, Title 10, United States Code.

On 31 Mar 04, the applicant was relieved from active duty and retired,
effective 1 Apr 04, in  the  grade  of  technical  sergeant.   He  was
credited with 21 years, 8 months, and 17 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRRP recommended  denial  indicating  the  applicant’s  retired
grade is E-6 because, under 10 USC 8961(b), he held the grade  of  E-6
on the date of retirement.  Although the  highest  grade  he  held  on
active duty was E-7, the applicant had been demoted to E-6 and retired
in that grade.  Under 10 USC 8964, the  Secretary  of  the  Air  Force
determined the applicant did not serve satisfactorily  in  any  higher
grade, so he would not be advanced to any higher grade than  E-6  when
his active service plus service on the retired list totals 30 years.

A complete copy of the AFPC/DPPRRP evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  response
reiterating his belief the action by the Secretary of  the  Air  Force
was unjust.  The Article 15 was the first disciplinary action of  that
nature during his career. He  has  had  no  other  problems  with  his
behavior on or off duty.  He took full responsibility for his actions.
 His dedication  to  his  unit,  the  wing,  and  the  Air  Force  was
unsurpassed.  He believes he was overly punished for one human mistake
and that his entire career was not taken into consideration.

Applicant’s complete response, with attachment, is at Exhibit F.

Applicant also reviewed the AFPB Vote Sheets which  were  provided  to
him for review and comments and furnished a response which is attached
at Exhibit H.

_________________________________________________________________

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  injustice.   The  evidence  of  record  indicates  that,
subsequent to his receipt of nonjudicial punishment under Article  15,
a Secretarial determination was made reflecting the applicant had  not
served satisfactorily in the higher grade of master sergeant and would
not be advanced under the  provisions  10  USC  8964.   He  eventually
retired in the grade of technical sergeant.  While we  have  found  no
evidence which has shown to our satisfaction the Article 15 punishment
was improper or an abuse of discretionary authority, it is our opinion
corrective action is warranted based on the following  considerations.
The applicant had an  outstanding  Air  Force  career  and,  with  the
exception of the infractions  which  led  to  the  imposition  of  the
Article 15, performed his duties in an outstanding manner in the grade
of master sergeant for almost 39 months and received three  firewalled
Enlisted Performance Reports (EPRs).  It also appears the  applicant’s
behavior resulting in disciplinary action against him was a mistake in
judgment,  and  not  a  pattern  of  misconduct.   In  view  of  these
considerations, we believe that a permanent reduction  in  grade  from
master sergeant to  technical  sergeant  was  excessively  harsh  and,
therefore, unjust.  The Article 15 was sufficient punishment  for  his
lapse in judgment.  Accordingly, we believe proper and fitting  relief
in this case would be to reinstate  the  applicant  to  the  grade  of
master sergeant prior to his date of retirement.  In arriving  at  our
decision,  we  note  the  current  Manual  for  Courts-Martial   (MCM)
provides,  among  other  things,  that  commanders   should   consider
suspending all or part of any punishment selected  under  Article  15,
particularly  in  the  case  of  first  offenders.   Accordingly,   we
recommend the applicant’s records be corrected to the extent set forth
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  master  sergeant  effective
and with a date of rank of 30 Mar 04.

      b.  On 31 Mar 04, he was relieved from active duty and  retired,
effective 1 Apr 04, in the  grade  of  master  sergeant,  rather  than
technical sergeant.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-01160 in Executive Session on 22 Sep 04, under the provisions  of
AFI 36-2603:

      Mr. Robert S. Boyd, Panel Chair
      Ms. Martha J. Evans, Member
      Mr. Alan A. Blomgren, Member

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

     Exhibit A.  DD Form 149, dated 1 Apr 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPB Vote Sheets.
     Exhibit D.  Letter, AFPC/DPPRRP, dated 15 Jun 04.
     Exhibit E.  Letter, SAF/MRBR, dated 25 Jun 04.
     Exhibit F.  Letter, applicant, dated 29 Jun 04, w/atch.
     Exhibit G.  Letter, AFBCMR, dated 29 Jul 04.
     Exhibit H.  Letter, applicant, dated 3 Aug 04, w/atchs.




                                   ROBERT S. BOYD
                                   Panel Chair



AFBCMR BC-2004-01160




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 , be corrected to show that:

            a.  He was promoted to the grade of master sergeant
effective and with a date of rank of 30 Mar 04.

            b.  On 31 Mar 04, he was relieved from active duty and
retired, effective 1 Apr 04, in the grade of master sergeant, rather
than technical sergeant.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency



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