RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-01722
INDEX NUMBER: 129.00
COUNSEL: None
XXXXXXX HEARING DESIRED: Yes
_________________________________________________________________
APPLICANT REQUESTS THAT:
He be retired in the grade of chief master sergeant (CMSgt) (E-9)
rather than senior master sergeant (SMSgt) (E-8).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was demoted by punishment under Article 15 for a violation that had
occurred two and one-half years prior. He was convinced by his
military counsel to accept the demotion based on the presumption that
he would be able to retire at the highest grade he had held, CMSgt.
After he was demoted, the Air Force Instruction changed within 30 days
and he was not allowed to retire at the higher grade. If he had known
he would not be able to retire in the higher grade, he would have
requested a court-martial, given the timeframe of his alleged offense.
The applicant’s complete submission, with attachments, is at Exhibit
A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant entered active duty in the Air Force on 23 May 74 and
was progressively promoted to the grade of CMSgt. On 6 May 98, his
commander offered him proceedings under Article 15 of the Uniform Code
of Military Justice (UCMJ) for the alleged offense of dereliction of
duty for failing to refrain from engaging in an unprofessional
relationship by having a sexual relationship with a subordinate member
of his unit in the grade of senior airman. The applicant consulted
counsel and on 8 May 98, elected to accept Article 15 proceedings. He
submitted a written presentation, but did not desire to make a
personal appearance. On 22 May 98, the applicant’s commander
determined that he had committed the alleged offense and imposed
punishment consisting of reduction to the grade of SMSgt and a
reprimand. On 27 May 98, the applicant indicated that he would appeal
the punishment, but on 1 Jun 98 withdrew his decision to appeal. On
29 May 98, the applicant requested voluntary retirement to be
effective 1 Aug 98. His request was approved. On 8 Jul 98, the
Secretary of the Air Force Personnel Council determined that the
applicant did not serve satisfactorily in any higher grade than SMSgt
and would not be advanced under the provisions of Section 8964, Title
10, U.S.C. The applicant retired effective 1 Aug 98 in the grade of
SMSgt.
_________________________________________________________________
AIR FORCE EVALUATION:
AFPC/DPPRRP recommends denial of the applicant’s request. Section
8964, Title 10, U.S.C. allows the advancement of enlisted members on
the retired list to the highest grade satisfactorily held while on
active duty when their combined active and retired list service totals
30 years. The Secretary of the Air Force (SECAF) determines if the
individual will be advanced. This authority has been delegated by the
SECAF to the SECAF Personnel Council (SAFPC). On 8 Jul 98, SAFPC
determined that the highest grade the applicant served satisfactorily
in within the meaning of Title 10, U.S.C., Section 8964, was SMSgt.
The complete evaluation is at Exhibit C.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on
25 Jun 04 for review and comment within 30 days. To date, a response
has not been received.
_________________________________________________________________
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 error or injustice. We took notice of the
applicant's complete submission in judging the merits of the case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and adopt their rationale as the
basis for our conclusion that the applicant has not been the victim of
an error or injustice. Therefore, in the absence of evidence to the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.
4. The applicant's case is adequately documented and it has not been
shown that a personal appearance with or without counsel will
materially add to our understanding of the issues involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________
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 Docket Number BC-2004-
01722 in Executive Session on 3 August 2004, under the provisions of
AFI 36-2603:
Ms. Olga M. Crerar, Panel Chair
Mr. John B. Hennessey, Member
Mr. James W. Russell, III, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 24 May 04, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPPRRP, undated, w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 25 Jun 04.
OLGA M. CRERAR
Panel Chair
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