RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-03407
            INDEX CODE: 131.00
      XXXXXXX                     COUNSEL:  NONE
                             HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

He be promoted to the grade of master sergeant (MSgt).

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APPLICANT CONTENDS THAT:

His records show he was awarded the rank of MSgt on 1 July 1996.

In support of his request, he submits copies of his promotion and  discharge
orders, email communiqué, data extracted from the  Military  Personnel  Data
System, and documentation associated with his grade determination.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

Data  extracted  from  the  available  records  reflect  the  applicant  was
promoted to MSgt effective 30 June 2003 and with a date of rank  of  1  July
1996.

On 3 June 2003, he  was  voluntarily  demoted  to  the  grade  of  technical
sergeant (TSgt) effective and with  a  date  of  rank  of  1 September  1990
because there were no vacancies for  his  grade  in  the  unit  he  applied;
therefore he accepted a lower position.

On 3 September 2006, he  was  relieved  from  the  Air  Force  Reserves  and
ordered to extended active duty until he reached retirement  eligibility  in
September 2008.  He was selected for promotion to  MSgt  and  the  promotion
sequence number (PSN) assigned to  him  would  have  incremented  in  August
2007.  Because he is serving on  a  defined  sanctuary  tour  that  ends  in
September 2008, he could not obtain  the  necessary  retainability  for  the
promotion.

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AIR FORCE EVALUATION:

AFPC/DPSOAA recommends denial.  DPSOAA states the applicant is  a  reservist
on a sanctuary tour with the Air  Force.   AFI  36-2131,  Administration  of
Sanctuary in the Air Force Reserve Components, states active duty  sanctuary
protection begins with 18 years of Total  Active  Federal  Military  Service
(TAFMS) and ends with 20 years of TAFMS.  He will have  20  years  TAFMS  at
the end of the tour.

The complete DPSOAA evaluation is at Exhibit B.

AFPC/DPSOE recommends denial.  DPSOE states the  applicant  was  erroneously
considered and tentatively selected  for  promotion  to  MSgt  during  cycle
07E7.  However, he became ineligible in accordance with (IAW)  AFI  36-2502,
Airman Promotion Program, when he was unable to obtain the  required  2-year
retainability due to his mandatory  date  of  separation  (DOS)  of  31 July
2008.  He was promoted to the grade of MSgt while  serving  as  a  reservist
and later demoted to the rank of TSgt.

The complete DPSOE evaluation is at Exhibit C.

AFPC/JA recommends denial.  JA  states  the  applicant’s  retainability  was
established by AFI 36-2131,  upon  accession  onto  active  duty  under  the
protections of sanctuary.  Air Force  policy  affords  sanctuary  protection
for only  so  long  as  the  statute  requires.   The  statutory  protection
provides  that  an  airman  within  two  years  of  becoming  eligible   for
retirement may not be involuntarily released from that duty before  becoming
eligible for that retired pay.  The regulation, not  the  statute,  requires
the DOS to be established upon reaching retirement eligibility at 20  years.
 As such, his DOS was established IAW with policy.

Airmen with over 18 years of service entering sanctuary are  ineligible  for
promotion to MSgt since an airman must have two years  retainability  to  be
eligible for promotion  to  that  grade.   He  was  willing  to  obtain  the
required two-year active duty service commitment  (ADSC).   The  ADSC  would
have been August 2009.  He, however,  was  not  eligible  to  extend  beyond
September 2008 IAW AFI  36-2131.   He  does  not  specifically  request  the
higher grade for purposes of  retirement;  yet,  JA  considered  whether  he
might be eligible in light of his imminent  retirement  in  September  2008.
Reserve enlisted members generally retire in the grade held  upon  the  date
of retirement unless entitled to a higher grade under some  other  provision
of law.  For Reserve enlisted members who are entitled  to  an  active  duty
retirement, federal law charges that those members reduced in grade  not  as
a result of misconduct shall be retired in the  highest  enlisted  grade  to
which the member served on active duty satisfactorily.   In  this  case,  he
held the grade of MSgt and was voluntarily demoted.  The question  turns  on
whether he served on active duty satisfactorily as an  MSgt.   While  it  is
evident he served on  active  duty  within  the  period  September  1995  to
September 1996, he was not promoted to MSgt until 1 July 1996.   If  between
1 July 1996 to 21 September 1996 he served on active duty, he  could  retire
in a higher grade under 10 U.S.C 8963.  Based on the  record  that  reflects
he served on a special tour as a MSgt, a determination on whether he  served
satisfactorily as an MSgt under  10  U.S.C.  may  be  warranted  before  the
applicant retires.

The complete JA evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating that sanctuary  protection  begins  with  18
years of TAFMS and ends with 20.  The intent of this  law  is  to  allow  an
individual to remain  on  active  duty  without  the  possibility  of  being
involuntary released until  they  become  eligible  for  retired  pay.   The
advisory did not address his demotion.  When he reenlisted in  the  Reserves
there were no master sergeant positions available in the unit he applied  to
so  he  volunteered  for  a  position  at  a  lower  grade.   AFI   36-2503,
Administrative Demotion of  Airmen  states  the  demotion  action  will  not
preclude  promotion.   AFPC  states  he  was  erroneously   considered   and
tentatively selected for promotion.  Functional category  “A”  personnel  on
active-duty are counted in the active-duty end strength and fall under  WAPS
for promotion consideration.  AFPC cites his ineligibility based on AFI  36-
2502, Table 1.1, Rule 15 and  the  AFI  does  not  take  into  consideration
personnel who previously held the grade.   The recommendation  to  deny  his
request is based on a misunderstanding of the sanctuary AFI and  his  unique
situation of previously serving in the higher  grade.   The  memo  from  the
staff Judge Advocate (JA) incorrectly cites him  as  stating  his  promotion
was withheld because he did not have the required retainability.  Again,  no
mention is made of his unique position as having previously held the  higher
rank.  The point credit summary established the tour on 26 to 28  July  1996
as an active duty tour, further evidence that  he  meets  the  requirements.
The JA correctly states that he  may  not  be  involuntary  released  before
becoming retirement eligible.  However JA states that  the  regulation,  not
the statue, requires the DOS be established.  There's no mention in the  AFI
regarding a DOS and he wonders why the regulation would be more  restrictive
than the law.  The ADSC AFI in place at the time of his initial  appointment
was less restrictive than the current regulation and  it  should  have  been
given consideration in his case.

His complete response is attached at Exhibit F.

_________________________________________________________________

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.  After a thorough review of  the  evidence
of record, we find no evidence of an error in this  case  and  we  are  not
persuaded by his assertions that he has been the victim  of  an  injustice.
In our opinion,  his  contentions  in  this  matter  have  been  adequately
addressed by the offices of  primary  responsibility  and  he  we  find  no
evidence which would lead us to believe  otherwise.   Therefore,  we  agree
with the opinions and recommendations of the Air Force offices  of  primary
responsibility and adopt its rationale as the basis for our conclusion that
he has not been the victim of an error or injustice.   In  the  absence  of
persuasive evidence to the contrary, we find no basis to recommend granting
the relief sought in this application.  Although he  did  not  specifically
request retirement in the highest grade held while on active duty; we  have
been advised that it has been determined that he served  satisfactorily  in
the grade of MSgt and is eligible to retire in that grade.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did  not  demonstrate
the existence of 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 AFBCMR Docket Number BC-2008-
03407 in Executive Session on 24 July 2008, under the provisions of AFI 36-
2603:

                 Ms.  B. J. White-Olson, Panel Chair
                 Mr.  Garry G. Sauner, Member
                 Ms.  Janet I. Hassan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 October 2007, w/atchs.
    Exhibit B.  HQ AFPC/DPSOAA, Letter dated 29 January 2008.
    Exhibit C.  HQ AFPC/DPSOE, Letter dated 31 January 2008.
    Exhibit D.  HQ AFPC/JA, Letter dated 25 April 2008, w/atchs.
    Exhibit E.  SAF/MRBR, Letter dated 9 May 2008.




                                   B. J. WHITE-OLSON
                                   Panel Chair