RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02033
            INDEX CODE:
            COUNSEL:  NONE
            HEARING DESIRED:  YES

      MANDATORY CASE COMPLETION DATE: 10 Jan 08

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APPLICANT REQUESTS THAT:

His records be corrected to reflect he was retired in the  grade  of  master
sergeant effective 1 May 93.

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APPLICANT CONTENDS THAT:

When he received a previous AFBCMR decision that essentially  overturned  an
unfair court-martial decision, he was told that after seven years  he  could
petition to have his highest rank held on  active  duty  restored  effective
the date of his retirement.

Applicant believes a cursory review of the Board's previous  decision  would
reveal that he continues to be a victim of  an  injustice.   Simply  stated,
this was a divorce custody matter between two military members that the  Air
Force was  dragged  into.   The  Air  Force  made  the  politically  correct
decision to prosecute the male member and give the estranged  wife  amnesty-
even though she admitted to  the  same  minor  violations  as  the  husband.
Today, applicant cannot imagine any branch of service ever getting  involved
in an  on-going  divorce  matter  between  two  active  duty  members.   The
military justice system, law precedents, and military  regulations  of  1989
through 1997 consistently dictated that once an agency decision was made  to
authorize retirement, an airman was to retire  at  the  highest  grade  held
regardless of grade at retirement.  His  career  up  to  the  point  of  the
military justice action was exemplary and since his discharge he has  worked
honorably as a special education teacher.

In support of his request,  applicant  provided  a  personal  statement  and
documentation associated with the prior AFBCMR decision.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 12 Feb 90, applicant, while serving in the grade of master sergeant,  was
convicted by a General Court-Martial.  He was found guilty of  violation  of
Article 92, violation of Standards of Conduct; violations of  Article  112a,
wrongful use of marijuana, wrongful possession of marijuana, and  wrongfully
distributing  marijuana;  and  violations  of  Article  134,   impeding   an
investigation, wrongfully altering public records, and wrongfully  making  a
false statement.  He was found not guilty of  numerous  other  charges.   He
was sentenced to a bad conduct discharge (BCD), confinement for six  months,
forfeiture of all pay and allowances, and reduction to airman basic.  On  16
Apr 90, the convening authority approved only so much  of  the  sentence  as
provided for a BCD, confinement for three months, total  forfeiture  of  all
pay an allowances, and reduction to airman basic.   At  the  time  applicant
had 18 years and 7 months of active military service.

On appeal, the Air Force Court of Military Review set  aside  and  dismissed
the Article 92 findings of guilty (violation of Standards  of  Conduct)  and
reaffirmed the remaining findings and sentence.  On 11 May 93, the  BCD  was
ordered executed and the applicant was separated.

On 12 Jun 97, the Board considered the applicant's request that his  BCD  be
upgraded to honorable, he receive full retirement benefits, and  he  receive
back pay and allowances.  The Board determined  the  applicant  had  been  a
victim of an injustice and directed that his record  be  corrected  to  show
his sentence was corrected to show he was reduced to the grade of  technical
sergeant, rather than airman basic, and that he was not sentenced to a  BCD.
 The Board also directed that his records be corrected to show that  he  was
retired from the Air Force on 1 May 93.

For an accounting of the facts and circumstances of his previous  submission
and the Board's decision, see the Record of Proceedings at Exhibit B.

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AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial.  DPPRRP states that since the AFBCMR did  not
address advancement on the retired list to the highest grade held on  active
duty, his case was forwarded to the Secretary of  the  Air  Force  Personnel
Council (SAFPC) to determine if he would be  advanced  on  the  active  duty
list to the highest grade satisfactorily held on active duty after 30  years
of service under the provisions of 10 USC § 8964.   For  his  unsatisfactory
conduct, SAFPC found that he did not serve satisfactorily in  the  grade  of
master sergeant and that he would  not  be  advanced  to  that  grade.   The
complete DPPRRP evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

All his performance reports prior to his court-martial were outstanding  and
the last seven were written while he was in the grade  of  master  sergeant.
During  the  six-year  period  immediately  following  his  conviction,   he
received a BCD and lost all rank  for  offenses  that  are  usually  handled
administratively at the  unit  level.   Regardless  of  the  previous  Board
decision he was still punished and denying his  retirement  at  the  highest
grade held seems cruel and unusual.  The bottom line is  that  this  was  an
acrimonious divorce/custody case between two active  duty  members,  already
in civil court, when the Air Force entered the matter solely at  the  urging
of his estranged wife.

His complete response is at Exhibit E.

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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  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  and  adopt  their
rationale as the basis for the conclusion that the applicant  has  not  been
the victim of an error or injustice.  In the  absence  of  evidence  to  the
contrary, we find no 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 issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.

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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.

________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2006-
02033 in Executive Session on 12 October 2006, under the provisions  of  AFI
36-2603:

                 Mr. Michael J. Maglio, Panel Chair
                 Ms. Janet I. Hassan, Member
                 Ms. Rita S. Looney, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 21 Jun 06, w/atch.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPRRP, dated 14 Aug 06, w/atchs.
      Exhibit D. Letter, SAF/MRBR, dated 25 Aug 06.
      Exhibit E. Applicant’s Response, dated 28 Aug 06.




                             MICHAEL J. MAGLIO
                             Panel Chair