ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2004-00487
INDEX CODE: 136.00
COUNSEL: FRANK SPINNER
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His records be corrected to reflect he retired in the grade of Master
Sergeant (E-7), effective 1 Dec 03 or that his records be corrected to
direct advancement to the grade of E-7 effective upon 30 years of combined
active duty and retired service.
_________________________________________________________________
RESUME OF CASE:
In his initial application, the applicant requested:
1. The charge of failure to go, violation of Article 86 of the
Uniform Code of Military Justice, be removed from the Article 15 imposed on
him on 18 Aug 03.
2, His reduction to the grade of technical sergeant (E-6) imposed as
punishment under Article 15 on 18 Aug 03 be set aside or suspended and he
be returned to the grade of master sergeant (E-7).
On 10 Jun 04, the Board considered and denied his request after finding
that he had not provided the evidence necessary to substantiate his claim
that the punishment he received was too harsh given his retirement and that
his retirement also precluded the Article 15 from being used as a
rehabilitative tool. In addition, because he signed his application for
voluntary retirement on 21 Sep 03, after he had already received the
Article 15, the Board felt it appeared it was his own decision to leave the
service when he did (Exhibit G).
The applicant has since procured the services of counsel, and requests his
case be reconsidered based on new evidence. Applicant refutes the Board’s
conclusion that it was his “own decision to leave the service when he did,”
but declares that he had no choice but to retire based on Air Force high
year of tenure rules.
In support of his latest request, he submits counsel brief with
attachments.
His complete submission is at Exhibit H.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPSOR recommends denial. Applicant’s enlistment date was 5 Dec 01
and his date of separation (DOS) was 4 Dec 03. In 1991, the Air Force
established 24 years Total Active Federal Military Service (TAFMS) as the
high year tenure (HYT) for MSgt, the limit in place on the date of his
enlistment. Applicant’s HYT as MSgt of 5 Nov 03, and AFI 36-3203, Service
Retirements, para 2.20., required that he retire the first day of the month
after HYT, or not later than 1 Dec 03.
Effective 1 Jan 03, the Air Force raised the HYT of MSgt to 26 years TAFMS
and the HYT for TSgt to 24 years TAFMS. Applicant, while in the grade of
MSgt, did not extend or reenlist for the additional two years allowable
under the new HYT policy. Meanwhile, the commander reduced the applicant’s
grade to TSgt effective 18 Aug 03. As a result of his reduction in grade,
the Air Force prohibited him from enlisting or extending past 24 years
TAFMS, the new HYT for TSgt. With a 4 Dec 03 DOS and his TSgt HYT of 5 Nov
03, he either would have had to voluntarily request retirement for the
first day of the month following his HYT (1 Dec 03) or be discharged on his
DOS of 4 Dec 03.
He would have been discharged on 4 Dec 03 if he had not requested
retirement on 1 Dec 03, the first day of the month after reaching his HYT.
The law clearly states that an enlisted member must request retirement from
the Air Force.
The complete DPSOE evaluation, with attachment, is at Exhibit I.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Applicant was required to retire on 1 Dec 03. The Air Force advisory
opinion agrees that, contrary to what was said in the AFBCMR’s original
decision, the applicant could not choose to remain on active duty in order
to regain the rank he lost as a result of the Article 15 punishment. The
advisory opinion does not address the remaining claims made by the
applicant and should be given no weight.
Counsel’s complete submission is at Exhibit K.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
After a careful reconsideration of the applicant's request and his most
recent submission, we do not find it sufficiently compelling to warrant a
revision of the Board’s prior decision in this case. Counsel’s brief is
duly noted; however, we were not persuaded that the applicant’s retirement
was improper or not in compliance with the governing instructions in effect
at the time. Therefore, we agree with the opinion and recommendation of
the Air Force office of primary responsibility and adopt its rationale as
the basis for our decision to deny the relief sought in this application.
________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified that the evidence presented did not demonstrate
the existence of probable 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 9 Dec 08, under the provisions of AFI 36-2603:
Mrs. Barbara A. Westgate, Panel Chair
Ms. Audrey Y. Davis, Member
Ms. Patricia R. Collins, Member
The following documentary evidence was considered in AFBCMR Docket Number
BC-2004-000487:
Exhibit G. Record of Proceedings, dated 26 Jul 04, w/atchs.
Exhibit H. DD Form 149, dated 1 Jan 08, w/atchs.
Exhibit I. Letter, HQ AFPC/DPSOR, dated 9 Oct 08.
Exhbiit J. Letter, SAF/MRBR, dated 24 Oct 08.
Exhibit K. Letter, Counsel, dated 23 Nov 08.
BARBARA A. WESTGATE
Panel Chair
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