RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2006-02700
            INDEX CODE:  129.04
            COUNSEL:  KENNETH J. DAVID
            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE: Mar 11, 2008

____________________________________________________________

APPLICANT REQUESTS THAT:

His record be corrected to show he  retired  in  the  pay  grade  of  senior
master sergeant (E-8) and that he be allowed to draw  retired  pay  in  that
grade.

____________________________________________________________

APPLICANT CONTENDS THAT:

Since he served in the grade of  E-8  for  over  two  years,  he  should  be
allowed to retire in that grade because the required service commitment  was
met.

He further states he was assured by officials at the Air  Reserve  Personnel
Center (ARPC) that he was not in danger of being  demoted  for  retired  pay
purposes.

In support of his request, the applicant and counsel have  provided  a  copy
of the  applicant’s  retirement  order,  a  statement  in  his  own  behalf,
training, promotion, decoration, and  special  orders,  Air  National  Guard
Active Duty Performance Ratings, a report of investigation, DMNA Form  1063,
Notification of  Intent  to  Impose/Recommend  Nonjudicial  Punishment  with
appeal documentation, affidavits, a copy of his DD Form 214, Certificate  or
Release from Active Duty, correspondence  from  the  Air  Reserve  Personnel
Center, the Secretary of the  Air  Force  (SAF)  Personnel  Council’s  grade
determination decision,  a  listing  of  achievements  and  accomplishments,
award and decoration citations and correspondence, letters of  appreciation,
character reference letters, letter of resignation, AF Form  1160,  Military
Retirement Action, and an e-mail.

The applicant's complete submission, with attachments, is at Exhibit A.

____________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Air Force  Reserves  on  26  Oct  78  and  was
progressively promoted to the grade of senior master sergeant on 17  May  93
while on active Reserve duty.  He was demoted, with prejudice, to the  grade
of master sergeant (E-7) on 17 Mar 03.  The demotion was  initiated  due  to
the misuse of  the  government  purchase  card,  wrongful  verification  and
submission of vouchers for payment, and dereliction in  the  performance  of
his duties.

The applicant retired on 1 Sep 03 as a senior  master  sergeant  (E-8)  with
21 years, 5 months, and 26 days active service for length of  service  under
the provisions of Title 10 U.S.C. 8914.

An administrative error was noted with the applicant’s retirement  in  2004.
Appropriate actions were taken to correct his records which resulted in  the
applicant being retired as a master sergeant (E-7) on 1 Sep 03.

Relevant facts are outlined in the advisory opinions at Exhibits C and D.

____________________________________________________________

AIR FORCE EVALUATION:

ARPC/DPP recommends denial of the case.   An  enlisted  member  who  retires
under Title 10, United States Code, Section 8914, and held  a  higher  grade
on active duty, is entitled to be  advanced  on  the  retired  list  to  the
higher grade when their total active federal military  service  (TAFMS)  and
time on the retired list totals 30 years, if  that  service  in  the  higher
grade is deemed to have been satisfactory as determined by the Secretary  of
the Air Force (SAF).  Since the applicant was a  master  sergeant  (E-7)  at
the time of his retirement and  he  previously  held  the  grade  of  senior
master sergeant (E-8), he should have been placed on the USAF  Retired  List
in the  grade of master sergeant (E-7) and his case  forwarded  to  the  SAF
Personnel  Council  (SAFPC)  for  determination   of   his   highest   grade
satisfactorily held.

Due to an administrative error by the ARPC retirement technician,  the  case
was not sent to SAFPC for a grade determination and the incorrect  grade  of
senior master sergeant (E-8) was placed on the retirement order.   When  the
error was discovered in 2004, ARPC took appropriate action  to  correct  the
error.

The applicant was  sent notification via certified  mail on  2  Jul  04  and
was given the opportunity to submit statements or evidence  in  his  behalf.
Upon receipt of the applicant’s  information,  the  case  was  forwarded  to
SAFPC for determination of highest grade held.  SAFPC  requested  ARPC  take
appropriate action to correct the applicant’s retired grade and  notify  the
Defense Accounting  and  Finance  Service-Cleveland  (DFAS-CL)  pending  the
completion of their review and in light of the fact that  if  highest  grade
held was approved it would be advancement.

ARPC issued a new order reflecting the correct grade for  the  applicant  as
master sergeant (E-7).  DFAS-CL was notified  and  changed  the  applicant’s
retired pay to reflect the proper grade of master sergeant (E-7).

On 29 Dec 04, SAFPC found that the applicant did  not  serve  satisfactorily
in any grade higher than master sergeant (E-7) and should  not  be  advanced
on the retired list.  The applicant was notified on 4 Jan 05  of  the  SAFPC
decision.

The complete evaluation of ARPC/DPP, with attachments is at Exhibit C.

ARPC/JA recommends denial of the applicant’s  request.   Had  ARPC  followed
its standard administrative procedure, the  SAF  grade  determination  would
have been made at the  time  of  retirement.   SAF  had  all  the  pertinent
information provided in the applicant’s package when  they  made  the  grade
determination  of  E-7.   ARPC  is  precluded  from  taking   any   contrary
administrative actions.  ARPC is well aware the AFBCMR looks at  the  entire
package to balance  equity  with  legal  and  administrative  language.  The
September ARPC advisory does not maintain otherwise.

The only similarity between the applicant’s case and  Thomas  is  they  both
committed misconduct. The Thomas case centered around  the  theory  that  if
partial relief was granted, complete relief  must  be  granted.   The  court
disagreed.   The  decision  upheld  the  actions  of  the  Army  Board   for
Correction of Military Records  which  granted  partial  relief  only.   The
Board changed the  discharge  characterization  from  General  to  Honorable
based on  a  change  of  discharge  basis  from  “unacceptable  conduct”  to
“completion of active duty service commitment” with some corresponding  back
pay.  The original findings of the Army that  Thomas’  conduct  warranted  a
general discharge was discretionary, and  the  Board  (over  two  dissenting
opinions) granted the change in characterization.  The Board did  not  grant
reinstatement or any other form of relief  “in  excess  of  the  foregoing.”
Neither the fact pattern, the relief sought, nor the bases  for  application
of relief are similar between the two cases.

The  statutory  and  regulatory  determination   of   highest   grade   held
satisfactorily was properly completed,  even  though  ARPC’s  administrative
error delayed the process.  The applicant, not  otherwise  entitled  to  the
higher grade for retirement purposes, should not be granted the  benefit  of
that administrative error.

The complete evaluation of ARPC/JA is at Exhibit F.

____________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel contends the ARPC/DPP advisory is improper  in  that
it wishes the Board to make a decision based on a more limited review.   The
Board must take into account the tenets of the entire record as it  pertains
to the applicant and then make a determination as to his retirement grade.

The author of the ARPC/DPP evaluation improperly implies that the  only  way
in which a  change  of  record  can  be  made  is  if  an  error  is  found.
Conversely, the AFBCMR is actually permitted to make a change in  record  if
an error is  discovered  or  if  there  would  otherwise  be  an  injustice.
Furthermore, the Board is permitted to make  its  decision  in  equity.   47
Fed.cl.at 580.  In Thomas, the veteran requested a change in record  because
of the inequity that would occur otherwise, Id.  That former service  member
had not only repeatedly failed to meet the standard for height  and  weight,
but also she had written fraudulent checks. Id. The  Board  determined  that
although the facts in the record were founded  permitting  the  decision  of
the parent service to stand would be inequitable.  Id. Thus the Board  voted
in equity.  Id.

The same inequity  appears  to  occur;  Thomas  and  the  current  case  are
strikingly similar.  The charges against the service member in  Thomas  were
for misuse of funds.  Here  too,  the  charges  are  for  misuse  of  funds.
Furthermore, to allow the plaintiff in Thomas to continue with the  decision
made by her parent service would be inequitable.  Here, numerous  inequities
would also occur.  The applicant was informed by officials at ARPC  that  he
would retire at his highest rank held—senior master sergeant.  He relied  on
that assertion and opted to leave his service since it was not necessary  to
regain his stripe.  His co-defendants, on the other hand,  decided  to  stay
in  the  unit  and  were  rewarded  with  being  promoted,  once  and  twice
respectively.  It is inequitable to allow the retirement  to  remain  as  it
stands.  The applicant would have remained with the NYANG had he been  given
any indication that the outcome of his decision would have been  a  loss  of
part of his earned retirement.  Because of assurances from  ARPC  officials,
the applicant left the NYANG and now cannot return to attempt  to  regain  a
stripe.

The applicant has suffered an inequity because of  a  determination  by  the
Secretary of the Air Force to only allow him retirement  as  an  E-7.   This
Board retains the ability to remedy that injustice and  change  the  record.
It should perform a complete review of the record that it has before it  and
then make its determination based on that  full  review.   Justice  requires
this decision and it is the equitable decision to make.

The applicant's complete response is at Exhibit E.

____________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.   There  does  not  appear  to  be  an  error  in  this  case,  per   se.
Nonetheless, when  all  of  the  unusual  circumstances  of  this  case  are
considered collectively, the majority of the panel  believes  the  applicant
has suffered an injustice because of his detrimental reliance  on  erroneous
information  from  responsible  Air  Force  Reserve  personnel,  i.e.,   the
advisement that even though he had been reduced in grade from senior  master
sergeant (E-8) to master sergeant (E-7) he would be retired  for  length  of
service in the higher  grade.   The  majority  of  the  panel  realizes  the
applicant submits no corroborative evidence  to  support  his  assertion  of
erroneous advice from responsible Air Force Reserve personnel. However,  the
majority believes the fact that retirement  orders  were  published  in  the
higher grade and the applicant received the retired pay of the higher  grade
for an extended period supports the inference that he was indeed  misadvised
by responsible personnel.

4. The charges against the applicant appear to be sufficiently egregious  so
as to warrant the punishment received.  On the other hand, the Secretary  of
the Air Force Personnel Council (SAFPC) observed, among other  things,  that
the applicant’s unit commander (CC) did not believe  a  reduction  in  grade
was warranted, and this CC was allegedly threatened  with  reprisal  by  the
Wing CC if he didn’t support the Wing CC’s desire to recommend  a  reduction
in grade.  SAFPC also noted the applicant apparently agreed  to  submit  his
retirement papers (rather than fight what he believed to be  unjust  actions
taken against him) under the mistaken belief that he  would  retire  at  the
higher grade.  That agency states the  applicant  and  his  defense  counsel
were led to this mistaken belief by a GS-5 retirements  technician  at  ARPC
who is the one who apparently  effected  his  retirement  papers.   Also  of
significance to  SAFPC  was  the  fact  that  applicant’s  original  defense
counsel was removed from the case by the New York National Guard JA  against
the wishes of the applicant.  He was substituted by another, less  practiced
attorney, who admittedly felt uncomfortable assuming the case in  the  midst
of all the  irregularities  and  controversies  over  it.   The  substituted
counsel also felt conflicted because he  was  representing  several  of  the
suspects  simultaneously,  some  of  whom  were  subordinate  to  applicant.
Furthermore, the substituted defense counsel was the base Deputy  JA,  whose
boss answered to the Wing CC, the  officer  pushing  for  the  reduction  in
grade.  This was apparently a normal practice in  the  NG,  particularly  in
New York.  Members  under  that  system  apparently  were  not  entitled  to
independent defense counsel  or  to  appear  in  person  in  response  to  a
Nonjudicial Punishment action.

5.  SAFPC appears to have based its determination  that  the  applicant  did
not serve satisfactorily in the higher grade on its view of the  applicant’s
misconduct as  “extremely  serious  criminal  behavior,  and  abuse  of  his
position of trust and authority over the IMPAC program, for personal  gain.”
 We do not necessarily disagree  with  its  assessment  of  the  applicant’s
misconduct.  However,  while  finding  the  applicant’s  misconduct  totally
unacceptable, the  Board  majority  again  notes  the  applicant  agreed  to
voluntarily end his career on the basis of erroneous  information  he  would
retire in the higher grade.  In view of all of  the  circumstances  of  this
case, the majority of the Board panel believes  the  applicant’s  subsequent
reduction of grade, while in retired status, and his lack of opportunity  to
regain the grade, was unduly harsh and, therefore, unjust.  Accordingly,  it
is recommended that the applicant’s  records  be  corrected  to  the  extent
recommended below.  In arriving at our  decision,  the  majority  is  keenly
aware of  the  applicant’s  corroborated  assertion  that  one  of  his  co-
defendants, who was also reduced in grade, has not only regained that  grade
but has been rewarded with promotion  to  a  higher  grade;  the  other  co-
defendant, while not reduced  in  grade,  has  also  earned  two  promotions
since.  Thus the majority finds it reasonable that  had  the  applicant  not
been misadvised by responsible personnel, he, too, would have remained  with
the unit with a high probability he would have regained  his  former  grade;
and that because of the assurances from ARPC officials, he  left  the  NYANG
and cannot return to attempt to regain a stripe.

____________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      a. On 31 Aug 03, he  was  promoted  to  the  grade  of  senior  master
sergeant (E-8).

      b. On 1 Sep 03, he transferred to the Retired Reserves
and his name was placed on the Air  Force  Retired  List  in  the  grade  of
senior master sergeant (E-8).

      c. On 29 Dec 04, the Secretary of  the  Air  Force  Personnel  Council
determined that he did serve satisfactorily in the higher  grade  of  senior
master sergeant (E-8).

____________________________________________________________

The following members of the Board considered this application in  Executive
Session on 5 June 2007, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Ms. Mary C. Puckett, Member
      Ms. Marcia Jane Bachman, Member

By majority vote, the Board voted to correct the  records,  as  recommended.
Ms. Bachman voted to deny the applicant’s request and  provided  a  minority
report which is at Exhibit H.

The following documentary evidence was considered for BCMR  Docket  BC-2006-
02700:

    Exhibit A.  DD Form 149, w/atchs, dated 25 August 2006.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, ARPC/DPP, w/atchs, dated 26 Aug
                06.
    Exhibit D.  Letter, SAF/MRBR, w/atch, dated 29 Sep 06.
    Exhibit E.  Applicant’s Rebuttal, w/atchs, dated 21 Dec
                06.
    Exhibit F.  Memorandum, ARPC/JA, dated 9 Feb 07.
    Exhibit G.  Letter, AFBCMR, w/atch, dated 13 Feb 07.
    Exhibit H.  Minority Report, dated 9 Jul 07.



                                   THOMAS S. MARKIEWICZ
                                   Chair





AFBCMR BC-2006-02700




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 XXXXXXXX, be corrected to show that:

      a.  On 31 August 2003, he was promoted  to the grade of senior
master sergeant
(E-8).

      b.  On 1 September 2003, he transferred to the Retired Reserves and
his name was placed on the Air Force Retired List in the grade of senior
master sergeant (E-8).

      c.  On 29 December 2004, the Secretary of the Air Force Personnel
Council determined that he did serve satisfactorily in the higher grade of
senior master sergeant (E-8) .



                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency