RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-00365
            INDEX NUMBER:  131.00
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  5 Aug 08


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be appointed to a master sergeant (MSgt) (E-7) position in the  Air
Force Reserves effective 1 Mar 06 with all backpay and benefits.

He be granted a waiver of the Reserve Service Commitment required  for
appointment to MSgt up to his high year of tenure (HYT).

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a five-page statement applicant provides a summary  of  the  issues
leading to his requests to the Board.  His  counsel  also  provides  a
five-page brief of counsel explaining the applicant’s case.  Among the
key points made are the following:

        A.  The applicant has been an  Air  Reserve  Technician  (ART)
since Jun 81 and up until Nov 05 held concurrent military and civilian
grades.  His concurrent military grade was technical  sergeant  (TSgt)
(E-6).

        B.  In Nov 05, the applicant  was  promoted  to  the  civilian
grade of WG-11, which had an authorized concurrent military  grade  of
MSgt.

        C.  He received endorsements approving his promotion  to  MSgt
sometime on or before 16 Feb 06 in time for a 1 Mar 06 effective date.

        D.  The applicant attempted to extend  his  enlistment  on  or
about 16 Feb 06 at his local military personnel flight (MPF) in  order
to sign the two-year Reserve Service  Commitment  (RSC)  required  for
promotion.  However, he was told he could not  extend  his  enlistment
because it would take him beyond his HYT of 20 Mar 07.

        E.  The applicant’s subsequent attempts  to  obtain  a  waiver
failed as he received correspondence from the Commander, USAFR,  on  2
May  06,  stating  that  because  his  HYT  only  allowed  10   months
retainability his request was disapproved.  The commander stated  that
it was his policy to strictly adhere to the Air Force Reserve  service
commitment policy, which is to insure  the  Air  Force  and  taxpayers
receive an appropriate return for their investment in promotions to E-
7  through  E-9.   All  members  must  apply  for  a  Reserve  Service
Commitment (RSC) waiver prior to promotion if they lacked the two-year
retainability to serve the RSC.  The applicant had already been  given
a three-year extension to his initial HYT and was thus ineligible  for
an additional extension.

        F.  The applicant states that he performed some of the  duties
of the WG-11 position starting  in  May  05,  when  the  position  was
vacated, and continues to perform the duties  from  the  date  he  was
officially placed in the position in Nov 05 to the  present.   He  has
been performing some of  the  MSgt  duties  despite  the  fact  he  is
classified as a TSgt.  In other words, the Air Force has been  “making
money” off him and should not worry about a return on investment.

        G.  He believes the Air Force allowed  another  individual  to
retire as an E-8 before he satisfied his two-year RSC.

        H.  He met all the criteria for promotion to MSgt as contained
in Air Force Instruction 36-2502,  “Airman  Promotion  Program.”   The
applicant references extracts from AFI 36-2502  to  show  he  met  the
criteria for promotion.  He states that the only bar to  promotion  is
for airmen who are within six months or less of  their  separation  or
retirement.  He  states  that  at  the  time  he  was  considered  for
promotion to MSgt, he had more than 12 months left  until  retirement.
In fact, since he had been performing some of the duties of MSgt since
Nov 05, this would have given him 16 months until retirement.

        I.  The provisions of AFRC36-2102  gives  the  Air  Force  the
authority to override the two-year retainability requirement in  favor
of the requirements in AFI36-2502.

        J.  He was not given the required 14-month notice of  his  HYT
date when he received his civilian promotion to WG-11.

        K.  He is a victim of the Air  Force’s  error  in  failing  to
notify  him;  and  their  interpretation  of  Air  Force   rules   and
regulations.  The denial of his promotion is costing  him  a  loss  of
approximately  $100  per  month  in  salary  and   a   difference   of
approximately $300 per month in retirement benefits.

In his brief of  counsel,  applicant’s  counsel  makes  the  following
points:

        A.  Counsel further discusses the provisions  of  AFI  36-2502
and how the applicant met requirements for promotion.

        B.  Counsel discusses the procedure to obtain an RSC  contract
and opines there is some discretion  in  enforcing  the  two-year  RSC
retainability requirement.  Counsel also  states  that  AFRC  36-2102,
Section 1.1.1 provides that in the event of  a  conflict,  commitments
set by statute, DoD, or other Air Force instructions  take  precedence
over the time commitments established by AFRC 36-2102.

        C.  With 38 years  of  service,  the  applicant  is  over  the
maximum 33-year high year of tenure date (HYTD).  He states  that  AFI
36-2612, Section 8.1 provides for a waiver of the 33-year maximum HYTD
using the following criteria:

              (1)  Waiver considered on a case by case basis.

              (2)  No waivers to members with a pay date  of  1956  or
earlier.

               (3)  Waiver  considered  for   those   members   deemed
essential to unit readiness.

              (4)  Waiver considered for Air Reserve Technician  (ART)
members who are within 14 months of their current HYTD.

According to AFI 36-2612, Section 8.4, the Air Force must provide  the
member a 14-month notification of the expiration of their HYTD by  (1)
mailing a letter to the member’s mailing address; (2) mailing a letter
to the member’s unit  commander  and  (3)  mailing  a  letter  to  the
member’s servicing CPO if the member is an ART.  The  applicant  never
received a letter regarding his HYT, which meant he  could  not  avail
himself of the waiver for  ART  members  within  14  months  of  their
current HYTD.

Counsel opines that based on the stipulations in AFI 36-2502 and  AFRC
36-2102, the Air Force  could  have,  and  should  have,  granted  the
applicant the promotion to master sergeant (MSgt).

In support of the applicant’s appeal, counsel submits the  applicant’s
statement, his brief of counsel, and 11 exhibits.


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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant initially entered military service on 20 Nov 68.   On  1
Jun 81 he entered the Air Force Reserves in  the  grade  of  technical
sergeant.  His date of rank to technical sergeant is   1 Jan 80.   The
applicant’s expected term of service (ETS) and  High  Year  of  Tenure
date was 20 Mar 07.  On 1 Mar 07, the applicant was transferred to the
Retired Reserves awaiting retired pay at age 60.  He had 36 years,  11
months, and 6 days of satisfactory service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/A1B recommends denial of the applicant’s request.  There were  no
error or injustice in his selection for assignment to his current  ART
position and his not being promoted to the grade of MSgt.   Subsequent
to his selection to  his  current  ART  position,  the  applicant  was
considered for waiver of the two-year RSC and the waiver  was  denied.
The waiver was denied because the applicant would have only been  able
to perform duty as a MSgt for 10 months before reaching his  mandatory
retirement at High Year of Tenure Date of 20 Mar 07.   The  denial  of
the applicant’s waiver request was in compliance  with  the  governing
directive, AFRCI 36-2102 because the primary intent  of  the  two-year
Reserve Service Commitment is to ensure the Air Force Reserve receives
a minimum return for its investment in an enlisted member’s  promotion
to the grade of MSgt.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluation, counsel states  that  the
applicant makes three arguments regarding AFRCI36-2102:

        A.  The applicant denies he  would  have  only  been  able  to
perform duty in the rank of MSgt for a period of  10  months  and,  in
fact, performed many of the duties as far back  as  Nov  05,  some  16
months before his HYTD.

         B.  The  requirements  of   AFRCI36-2102   can   be   waived,
superseded,  or  released.   The  applicant   has   essentially   been
performing the MSgt position since Nov 05 and has served the Air Force
honorably for over 30 years.  He is retiring  because  the  Air  Force
mandates his retirement and because the base to which he  is  assigned
is closing.  The Air Force has received a considerable return  on  its
investment and to declare otherwise at this point in his career  would
be an injustice.

        C.  The applicant has suffered  monetary  loss  that  directly
affects his retirement benefits.

Counsel’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.  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-2007-
00365 in Executive Session on, under the provisions of AFI 36-2603:

      Mr. James W. Russell, III, Panel Chair
      Ms. Mary C. Puckett, Member
      Mr. Clarence R. Anderegg, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 2 Nov 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, HQ AFRC/A1B, dated 20 Mar 07.
    Exhibit D.  Letter, SAF/MRBR, dated 23 Mar 07.
    Exhibit E.  Letter, Counsel, dated 18 Apr 07.




                                   JAMES W. RUSSELL, III
                                   Panel Chair