RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02309
            INDEX CODE:  110.03, 131.04

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show he  was  promoted  to  the  grade  of
technical sergeant (TSgt) effective and with a date of rank (DOR) of 1
November 2002 and his High Year of Tenure (HYT) date be  corrected  to
reflect March 2009 rather than 7 May 2007 so that  he  may  return  to
active duty.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 24 October 2002, while stationed at Osan AB, Korea, and celebrating
an impending promotion to the grade  of  TSgt,  he  was  charged  with
driving under the influence (DUI).  On 1 November  2002,  he  was  not
promoted and on 15 November 2002, he received an Article  15  and  was
reduced in grade, which was suspended for six months.  On 27 May 2003,
he received an “Acceptable” rating on his Enlisted Performance  Report
(EPR) due to the DUI.

On 2 April 2007, while stationed at Keesler AFB, he  tested  for  TSgt
again.  Upon  mentioning  the  test,  his  commander  brought  up  his
personnel record and told him he had two years left on his enlistment.
 He went to renew his identification (ID) card and was  told  his  HYT
had expired and that he had to retire right away.  He was told his HYT
date was actually 28 April 2007 and that he should have  been  retired
prior to January, 2007.  HQ AFPC directed  military  personnel  flight
officials to extend him until 28 June 2007 but advised that his actual
retirement date would be 1 June 2007.  He was told that if he did  not
retire, he would be separated.  He felt he had no choice but to retire
or  face  losing  his  20-year  retirement.   Because  of  the  forced
retirement, he lost all his entitlements such as his  terminal  leave,
permissive TDY and he had to sell 57 days of his leave.  As he retired
prior to 14 June 2007, he was not privy to the results of his  testing
for TSgt.  Had he known he would have been forced to retire, he  would
have tested for TSgt earlier in April so that he could  possibly  have
been be promoted to TSgt and have his HYT extended,  thereby  allowing
him to stay on active duty for two more years.  He and his family have
endured hardships as a result of the unexpected change in his HYT from
2009 to 2007.  He and his wife have four children with three  of  them
in college.  He lost his Basic Allowance for  Housing  (BAH)  and  his
subsistence allowance, and half his base  pay,  all  unexpectedly  and
within a very short period of time.  Housing and other expenses on the
Mississippi  Gulf  Coast  post  Katrina  are  expensive  and  adequate
employment is hard to find – especially on such short  and  unexpected
notice.

He further contends that the official handling of his DUI in Korea was
not done properly and in accordance with governing Instructions.   Air
Force Instruction (AFI) 36-2502, Airman Promotion Program, states that
if an airman is  non-recommended  for  promotion,  he  should  receive
written notification within five (5) working days.  He never  received
such a letter and further  investigation  has  shown  no  such  letter
exists in his personnel record.  He contends the Air Force,  after  20
years of service, did not support him for being a faithful  and  loyal
member.  He feels he was put out of the military and not retired.   He
had always enjoyed being a member of the Air Force and looked  forward
to  serving  many  additional  years  and  competing  for  many   more
promotions.   He  feels  as  though  he  has  been  punished  for  one
infraction in all his years of service that  ended  up  being  far  in
excess of the original 6-month suspended reduction in grade.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement, and copies of his DD Form 214, Certificate  of  Release  or
Discharge from Active Duty, a Congressional Inquiry and  a  letter  in
response, with attachments, the EPR he received in Korea written after
his DUI, a Report on Individual personnel (RIP), an Inspector  General
response to the applicant, and his retirement order.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant entered the Regular Air  Force  on  9  June  1987.   He  was
progressively promoted to the grade of staff sergeant (SSgt)  with  an
effective and  date  of  rank  (DOR)  of  1  December  1995.   He  was
tentatively selected  for  promotion  to  the  grade  of  TSgt  during
promotion  cycle  02E6.   He  received   promotion   sequence   number
2833 which would have incremented 1 November 2002.  In  October  2002,
his personnel record was updated to show his pending promotion was  in
a mandatory hold status due to an ongoing investigation  into  a  DUI.
On 7 November 2002, he received  an  Article  15  for  the  DUI.   His
punishment consisted of a reduction to  the  grade  of  senior  airman
(SRA),  suspended  through  14  May  2003,  unless   sooner   vacated;
forfeiture of $876 pay per month for two months; restriction from both
Enlisted Clubs at Osan Air Base (AB) for 45 days; restriction from the
Red Horse Hooch for 45 days; and 45 days extra  duty.   In  accordance
with AFI 36-2502, he became ineligible for promotion when he  received
the Article 15 as his line number was removed.

On 12 July 2006, his service  record  was  reviewed  and  a  corrected
Statement of Service was issued.  The Statement  of  Service  revealed
over two months of active duty he spent with the Army National  Guard.
His Total Active Federal Military Service Date (TAFMSD) was  therefore
changed from 11 March 1987 to 7 January 1987 to accommodate  the  time
spent with the Army  National  Guard.   Therefore,  according  to  HYT
rules, he was to be retired not later than 1 February 2007.

In April 2007, when the MPF realized the applicant should have retired
the  previous  February,  they  advised  him  to   request   immediate
retirement effective 1 June 2007 as  he  could  not  extend  past  his
Expiration Term of Service (ETS) of 28 June 2007.  On  23 April  2007,
the Military Personnel Flight (MPF) contacted HQ AFPC and was directed
to correct his HYT to match up with his grade of SSgt and initiated an
extension to allow him time for retirement and to  continue  receiving
pay.  His HYT was extended from 7 January 2007 to 7  May  2007  as  an
exception to policy.

On 7 May 2007, he submitted a  complaint  to  the  Air  Education  and
Training Command (AETC) Wing Inspector General  (IG)  questioning  the
validity of his non-promotion to TSgt as  a  result  of  receiving  an
Article 15 during November 2002.  He also questioned the 20-year limit
of service imposed by  the  HYT  on  SSgt’s.   The  IG  forwarded  his
complaint to the Mission Support Squadron (MSS)  as  this  issue  fell
within their purview.  On  17  May  2007, the  IG  reported  that  the
applicant’s commander should have notified him within five days of the
promotion withhold action; however, there was  no  evidence  found  to
show his commander actually generated the  letter.   He  was  relieved
from active duty and retired effective 1 June 2007 after having served
20 years, 4 months and 24 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPEP was tasked to address any contentions  the  applicant  had
with the EPR he received after his DUI.  DPPPEP notes the applicant is
not contesting the EPR and it appears to be  mentioned  for  reference
only.  There  are  no  errors  and  the  EPR  is  in  compliance  with
established Instructions.

DPPPEP’s complete evaluation is at Exhibit B.

AFPC/DPPPWB addresses the applicant’s request for  promotion  to  TSgt
and recommends denial.  DPPPWB notes his statement he never received a
promotion non-recommendation letter and states that in accordance with
AFI 36-3502, Table 1.1, rule 19, he became  ineligible  for  promotion
when he received the Article 15 suspended reduction.

DPPPWB’s complete evaluation is at Exhibit C.

AFPC/DPPRRP addresses the applicant’s request to change his  HYT  back
to the HYT date of 11 March 2009 rather  than  7  May  2007.   As  his
promotion to TSgt was never consummated, his HYT should have  remained
at 7 January 2007 and his TAFMS at 20 years.  Consequently, he  should
have retired not later than 1 February 2007.  Hardship  extensions  of
HYT, while infrequent, should be submitted only if the airman can show
extreme hardship not common to  his  contemporaries  or  in  the  best
interest  of  the  Air  Force.   Additionally,  those   hardship   HYT
extensions that are granted make the member ineligible for  promotion.
He was extended to 7 May 2007 as an exception to policy to  allow  him
to retire instead of face separation.  While he could  have  done  so,
DPPRRP  states  there  is  no  evidence  the  applicant  requested  an
extension of his 7 May 2007 HYT exception to policy on  the  basis  of
hardship and therefore recommends denial.

DPPPWB’s complete evaluation, with attachment, is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
21 September 2007 for review and comment within 30 days.  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.  Sufficient relevant evidence has been presented to demonstrate the
existence of an injustice warranting partial correction in regards  to
his rushed and wholly unexpected discharge from  the  Air  Force.   We
understand the policy surrounding HYT and the need for such a program.
 However, we believe its use  in  this  instance  visited  an  extreme
injustice upon the applicant and his family.  The Air  Force  realized
their error regarding the applicant’s HYT date, and, instead of making
a conscious effort to ensure he was provided transitional benefits  to
which he was entitled, the Air Force  made  haste  to  fulfill  policy
requirements without regard to what the member and  his  family  might
suffer as a result and forced him into immediate  retirement.   It  is
our view, that the Air Force erred in its handling of  this  HYT  case
and we therefore recommend  his  records  be  corrected  as  indicated
below.

4.  Notwithstanding the above, we find insufficient relevant  evidence
has been presented to demonstrate the existence of error or  injustice
in regards to his request for promotion  to  technical  sergeant.   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 its rationale as the basis for our conclusion that the applicant
has not been the victim of an error  or  injustice.   Because  of  the
passage  of  time  and  the  disposition  instruction  for   documents
contained in military personnel records, we  cannot  confirm  or  deny
that his commander  presented  him  with  a  written  notification  of
withhold  of  his  promotion   in   accordance   with   AFI   36-2502.
Nevertheless, for the sake of argument, even if his commander had  not
followed up his verbal order not to  assume  the  grade  with  written
notification within five days as required by the Instruction,  in  our
opinion, failure to do so does not constitute an automatic entitlement
to the grade.  His line number for promotion to technical sergeant was
removed as a result of his receipt of a suspended reduction as part of
his  Article  15  punishment,  which  rendered  him   ineligible   for
promotion.  Therefore, in the absence of evidence to the contrary,  we
find no compelling basis to recommend granting  the  promotion  relief
sought in this application.

5.  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 involved.  Therefore,
the request for a hearing is not favorably considered.

______________________________________________________________

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 May 2007, he applied for a waiver of his HYT date,  and
the waiver was approved by competent authority.

      b. He was honorably discharged on 31 May 2007 and reenlisted in
the Regular Air Force on 1 June 2007 for a period of two years.

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2007-02309  in  Executive  Session  on  30  October  2007,  under  the
provisions of AFI 36-2603:

      Mr. Jay H. Jordan, Panel Chair
      Mr. Garry G. Sauner, Member
      Mr. Joseph D. Yount, Member

The following documentary evidence was considered pertaining to AFBCMR
Docket Number BC-2007-02309:

    Exhibit A. DD Form 149, dated 13 July 2007, w/atchs.
    Exhibit B. Letter, AFPC/DPPPEP, dated 30 July 2007.
    Exhibit C. Letter, AFPC/DPPPWB, dated 31 July 2007.
    Exhibit D. Letter, AFPC/DPPRRP, dated 7 August 2007, w/atch.
    Exhibit E. Letter, SAF/MRBR, dated 21 September 2007.




                                   JAY H. JORDAN
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


[pic]
Office Of The Assistant Secretary



AFBCMR BC-2007-02309




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 APPLICANT, be corrected to show that:

            a. On 31 May 2007, he applied for a waiver of his High
Year of Tenure date, and the waiver was approved by competent
authority.

            b. He was honorably discharged on 31 May 2007 and
reenlisted in the Regular Air Force on 1 June 2007 for a period of two
years.





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency