RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03259
            INDEX NUMBER: 100.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  28 APR 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to reflect his  demotion  from  Technical  Sergeant
(TSgt/E-6) to Staff Sergeant (SSgt/E-5) be removed from his records and  his
retirement rank and pay be as an E-6 rather than an E-5.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

His  demotion  was  unjust  and  done  incorrectly.   He  also  states   the
referenced paragraph of the Air Force Instruction (AFI)  that  was  used  as
the reason for his demotion was incorrect, thereby causing the  demotion  be
invalid.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force (RegAF) on 29 June 1982,  as
an airman basic (AB) for a period of four years.

The applicant received an Article 15 on 27 February  1984  for  operating  a
vehicle while drunk.  His punishment consisted of forfeiture of  $150.00  of
pay for  one  month  and  the  Article  15  was  filed  in  his  Unfavorable
Information File (UIF).

The applicant received  a  referral  Enlisted  Performance  Report  for  the
period ending 16 August 2000 for being arrested off base for  driving  while
under the influence.

On 16 November 2000, the applicant was notified of the  demotion  action  in
accordance with AFI 36-2503, paragraph 3.4.1.

Per Special Order AA-0001, dated 19 January 2001, the applicant was  demoted
from the grade of TSgt to the grade of SSgt with a date of rank (DOR) of  15
January 2001.

The applicant’s EPR profile as TSgt reflects the following:

                 PERIOD ENDING               OVERALL EVALUATION

                     15 Jul 98                           4
                     12 Nov 98                           5
                     12 Nov 99                           3
                     16 Aug 00                           4
                     16 Aug 01                           3

The applicant submitted  a  request  to  the  Secretary  of  the  Air  Force
Personnel Counsel (SAFPC) requesting advancement on the retired  list  under
the provisions of Title 10 United States Code (USC), Section  8964.   On  23
July 2002, SAFPC determined the applicant did not  serve  satisfactorily  in
any higher grade and directed he not be advanced to the higher grade on  the
retired list.

On 1 November 2002, the applicant was honorably  retired  in  the  grade  of
SSgt.  He served 20 years, 4 months and 2 days of active duty service.

On 5 December 2005, HQ AFPC/DPPRRP informed the applicant  of  the  criteria
for advancement on the retired list under the provisions of 10 USC,  Section
8964.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ USAF/DPPPWB recommends the applicant’s request  be  denied.   They  state
the paragraph cited in the applicant’s demotion action  referred  to  airmen
who  failed  to  maintain  physical  standards.    This   was   an   obvious
administrative error.  The notification letter explained that  the  specific
reason for his demotion was  his  failure  to  fulfill  his  noncommissioned
officer (NCO) responsibilities.

DPPPWB further states the demotion action taken against  the  applicant  was
procedurally correct and no evidence was found  reflecting  there  were  any
irregularities or that the case was mishandled.

Furthermore, the applicant does not dispute the fact he  was  driving  while
under the  influence;  he  believes  the  punishment  he  received  was  not
consistent with others who committed the same offense and the  demotion  was
invalid because of an administrative error citing  which  paragraph  in  the
AFI under which he was to be demoted.

A complete copy of the Air Force  evaluation,  with  an  attachment,  is  at
Exhibit C.

HQ AFPC/DPPRRP based on the information provided, recommends  the  requested
relief be denied.  They state the general rule for enlisted  servicemember’s
retired grade is Title 10 USC, Section 8961, unless  entitled  to  a  higher
grade under some other provision of law, a regular or reserve  servicemember
of the Air Force who retires other than for physical disability  retires  in
the regular or reserve grade held on the date of their retirement.

Title 10 USC, Section 1407(f)(2)(B), states if an  enlisted  member  was  at
any time reduced in  grade  as  the  result  of  a  court-martial  sentence,
nonjudicial punishment, or an administrative action, unless the  member  was
subsequently promoted  to  a  higher  enlisted  grade,  the  computation  of
retired pay is determined under Title 10  USC,  Section  1406,  Retired  pay
base for members who first  became  members  before  September  1980:  final
basic  pay.   The  applicant’s  Date  Initially  Entered  Uniformed  Service
(DIEUS) is 29 December 1981, which would qualify the applicant for the High-
36 retired pay base if he had not been demoted from TSgt to  SSgt;  however,
due to the demotion, his retired pay base is final basic pay.

A complete copy of the Air Force  evaluation,  with  an  attachment,  is  at
Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Complete  copies  of  the  Air  Force  evaluations  were  forwarded  to  the
applicant on 27 January 2006, for review and response.  As of this date,  no
response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or
regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or an injustice.  We took notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and the recommendations of the Air Force and  adopt  their
rationale as the basis for our conclusion that the applicant  has  not  been
the victim of an  error  or  an  injustice.   The  applicant  requested  his
demotion from technical sergeant to  staff  sergeant  be  removed  from  his
records and that his retired rank and pay should be  E-6  rather  than  E-5.
The applicant further contends  the  demotion  was  invalid  because  of  an
administrative error in the notification letter.  However, it is  noted  the
notification letter explained that the  specific  reason  for  the  demotion
action was the applicant’s failure to fulfill  his  responsibilities  as  an
NCO.  As a result, the applicant was demoted from a  technical  sergeant  to
staff sergeant.  We are persuaded this was a harmless error.   Subsequently,
the applicant appealed to SAFPC seeking advancement  on  the  retired  list.
SAFPC determined the applicant did not serve satisfactorily  in  the  higher
grade and denied his  request.   In  this  respect,  it  is  noted  that  in
addition to the referral EPR and Article 15 for drunk driving  in  1984  and
2000, he was involved in two physical altercations with his  spouse.   After
the first  incident  he  was  apparently  demoted  to  the  grade  of  staff
sergeant.  It appears there is sufficient documentation  indicating  he  did
not  serve  satisfactorily  in  the  higher  grade  of  technical  sergeant.
Therefore, applicant subsequently retired in the grade of staff sergeant  in
accordance with 10 USC 8961 which states a servicemember will be retired  in
the grade held on the date of retirement.  The applicant’s retired  pay  was
computed in accordance with law.  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 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 March 2006, under the provisions of AFI 36-2603:

                       Mr. Michael J. Maglio, Panel Chair
                       Ms. Jan Mulligan, Member
                       Mr. Michael J. Novel, Member

The following documentary evidence pertaining to AFBCMR  Docket  Number  BC-
2005-03259 was considered:

    Exhibit A.  DD Form 149, dated 17 Oct 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPWB, dated 18 Jan 06.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 20 Jan 06.
    Exhibit E.  Letter, SAF/MRBR, dated 27 Jan 06.




                                   MICHAEL J. MAGLIO
                                   Panel Chair