RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-01771
            INDEX CODE:  131.05
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that he retired as  Chief  Master  Sergeant
(CMSgt), his highest grade held.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was promoted to CMSgt in Nov 96.   He  successfully  and  honorably  held
that rank for nearly 4 years.  On 1 Sep 00, he volunteered for reduction  in
grade to SMSgt, in order to accept a position.  He feels that at a  minimum,
he should have retired as a Senior Master Sergeant (SMSgt) and not  received
double rank reduction as punishment.  He was forced to withdraw  his  appeal
or not continue with his retirement request.  His  reduction  in  grade  was
effective after retirement eligibility.

According to the  Area  Defense  Counsel's  handout,  "the  member  receives
retirement pay at the highest grade held after becoming eligible to  retire.
 The save-grade for pay purposes rule is based upon 10 U.S.C.  1401a(f)  and
56 Comp. Gen 740."

In support of the application, the applicant submits his  letters  from  his
ADC with attachments and the ADC handout.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 31 May 05, the applicant was separated from the  regular  Air  Force  for
voluntary retirement in the grade of Master Sergeant (MSgt).

The following is a resume of his last ten (10) enlisted  evaluation  reports
(EPRs) commencing with the report ending on 5 Jan 96:

PERIOD ENDING    OVERALL PERFORMANCE

       5 Jan 96        5
      26 Nov 97        5
      26 Nov 98        5
      26 Nov 99        5
      11 Jul 00        5
      11 Jul 01        5
      11 Jul 02        5
       2 Jun 03        5
       2 Jun 04        5
      *18 Feb 05       2

*Referral Report (Commander-directed)

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military records, are contained in the  letter  prepared  by
the appropriate office of the Air Force at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/JA recommends denial.  JA states  the  applicant  was  a  full  time
member of the Air Force Reserves who served at  various  times  on  extended
active duty.  On 1 Mar 93, he initially entered as a  master  sergeant  –  a
period of active duty that extended until his retirement.  On 1 Nov  94,  he
was promoted to the grade of SMSgt.  On 1 Nov 96, he  was  promoted  to  the
grade of CMSgt.  Subsequently,  he  accepted  a  position  that  required  a
voluntary demotion to SMSgt effective 1 Sep 00.

JA notes that except for his last EPR, the applicant's reports indicate  top
ratings.  His last EPR reflected the nonjudicial punishment  imposed  on  12
Jan 05 for various violations  of  the  UCMJ.   The  nonjudicial  punishment
imposed consisted of a reduction of one grade to MSgt and a  reprimand.   On
12 Jan 05, the applicant indicated that he intended to appeal.   On  24  Jan
05, the applicant submitted an appeal that did not address the findings  but
rather contended  the  imposed  punishment  was  not  proportionate  to  the
offenses.  According to a memo submitted by  the  applicant  from  his  ADC,
dated 10 Feb 05, the  applicant  withdrew  his  appeal  to  the  nonjudicial
punishment because of an administrative  hold  that  potentially  interfered
with a requested retirement date of 1 May 05.

On 31 Mar 05, the  applicant  applied  for  retirement.   On  7  Apr  05,  a
Secretarial  determination  was  made  that  the  applicant  did  not  serve
satisfactorily in any higher grade than MSgt for purposes of advancement  to
the highest grade satisfactorily held at 30 years.

On 1 Jun 05, the applicant retired as a reserve MSgt with more than 2  years
of creditable service for an active duty retirement under federal law.

JA opines corrective action is not warranted with regard to the  applicant's
retired grade of  MSgt  because  10  U.S.C.  8961  does  not  apply  to  his
retirement.  Reserve enlisted members  previously  administratively  reduced
in grade not as a result of the member's own misconduct,  as  determined  by
the Secretary of the Air Force, are entitled to be retired  in  the  highest
grade held on active duty in accordance with 10 U.S.C. 8963.  In this  case,
the applicant was voluntarily reduced in rank  from  CMSgt  and  reduced  in
rank from SMSgt due to misconduct.  The  applicant's  last  year  of  active
duty was marred by misconduct, and use of 10  U.S.C  8963  as  a  shield  is
inapposite to its  use  as  a  safeguard  to  those  reservists  who  accept
voluntary demotions to serve on active duty  by  preserving  entitlement  to
the higher grade.

JA states, as a CMSgt, the  applicant's  records,  EPRs  and  MSM  upon  PCS
indicate he served satisfactorily.  JA states they  are  not  aware  of  any
evidence of misconduct before the applicant's voluntary demotion  to  SMSgt.
JA notes the highest  grade  held  on  active  duty  satisfactorily  by  the
applicant was CMSgt, thereby permitting him to be  advanced  to  that  grade
upon reaching 30 years of service.

JA opines the applicant's claim that he was "forced" to withdraw his  appeal
or not continue with his "retirement request" is  an  overstatement  and  is
not  supported  by  the  evidence.   JA  notes  the  applicant   had   ample
opportunity to submit his appeal and did so two weeks after  punishment  was
imposed.

The complete JA evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 12  Oct
07 for review and comment within 30 days.  As of this date, this office  has
received no response (Exhibit D).

_________________________________________________________________

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  and  adopt  their
rationale as the basis for the 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.

________________________________________________________________

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 this application in  Executive
Session on 24 January 2008, under the provisions of AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Ms. Karen A. Holloman, Member
      Mr. Wallace F. Beard Jr., Member

The following documentary evidence was considered for AFBCMR  Docket  Number
BC-2007-01771:

      Exhibit A.  DD Form 149, dated 22 May 07, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, HQ AFPC/JA, dated 13 Sep 07.
      Exhibit D.  Letter, SAF/MRBR, dated 12 Oct 07.




                                  KATHLEEN F. GRAHAM
                                  Panel Chair