RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04102 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His retired pay grade be changed from staff sergeant (E-5) to 
technical sergeant (E-6). 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He held the rank of technical sergeant for over 12 years. 

 

According to regulations, the fact he was promoted to a higher 
rank and held that rank for over (12 of years, he should be 
retired at the highest rank held. 

 

On 31 Oct 03, he retired from the United States Air Force as a 
technical sergeant after having served faithfully and honorably. 
He has been getting paid as a staff sergeant since his 
retirement. 

 

He was a technical sergeant for over 12 years of the 22 years he 
served in the Armed Forces. 

 

In support of his request, the applicant provides a personal 
statement, copies of his Retiree Account Statement, Retirement 
Certificate, certificates of training and awards, and personal 
data and point credit history printouts. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant served on active duty in the New Mexico Air 
National Guard (NMANG) for over 22 years. 

 

On 7 Feb 93, the applicant was promoted to the grade of technical 
sergeant. 

 

On 22 Jan 03, the applicant was reduced in grade from technical 
sergeant to staff sergeant, with a new date of rank of 21 Nov 02, 
as a result of an Article 15, due to government travel card (GTC) 
misuse. Specifically, between 11 Aug 02 and 10 Sep 02, he took 


cash advances on his GTC in the amount of $804.00 with service 
charges of $85.15 while not performing official government 
travel. This was the second instance of GTC misuse. The first 
event occurred when he was on temporary duty (TDY) to Nellis AFB, 
NV and took unauthorized cash advances of over $900.00 when the 
estimated authorized per diem for this TDY was $600.00. He 
received a Letter of Reprimand (LOR) for this misconduct. This 
misconduct was also used as a charge in the Article 15. Although 
the Article 15 cited two charges of misconduct for GTC abuse, 
only charge #2 (11 Aug – 10 Sep 02) should have been used for the 
basis for this action. 

 

In Nov 03, the applicant applied for retired pay requesting a 
retirement effective date of 1 Dec 03. He has been receiving 
retired pay in the grade of staff sergeant (E-5) since that date. 

 

The applicant was notified by the Air Reserve Personnel Center 
(ARPC) that due to the circumstances of his demotion from 
technical sergeant to staff sergeant on 22 Jan 03, they must 
obtain a determination of his highest grade satisfactorily held 
from the Secretary of the Air Force Personnel Council (SAFPC). 
Due to an administrative oversight, a grade determination was not 
accomplished at the time the applicant’s retirement was 
processed. 

 

Based on the applicant’s years of service his 30-year advancement 
date would be 3 Nov 13. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

HQ ARPC/DPT recommends denial. DPT states the applicant was 
involuntarily demoted for cause; therefore, he is not eligible 
for the grade of technical sergeant until 3 Nov 13, and then only 
upon approval by the Secretary of the Air Force. 

 

There is no regulation that requires a member who holds a higher 
grade for a specific number of years to be retired in that grade. 
Retired grades are determined by law, and not by regulation. 
Title 10, United States Code (USC), Section 8961, states an 
enlisted member retires in the grade held on the date of 
retirement unless entitled to a higher grade under another 
provision of law. If an enlisted member, with 20 or more years 
of active duty service is demoted for cause, his retired grade is 
determined by the SAF and is established in accordance with Title 
10, USC, Section 8964. If the higher grade is approved, the 
member is advanced to the higher grade on the United States Air 
Force Retired List when his active duty service, plus service on 
the Retired List, totals 30 years. 

 

The complete DPT evaluation, with attachments, is at Exhibit B. 

 

_________________________________________________________________ 


 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant states he was not under the provisions of Title 10, 
USC, Section 8914; he was Title 32, which falls under the State. 
His commanding officer was also Title 32. An officer in Title 
32 status may not discipline a member under the Uniform Code of 
Military Justice (UCMJ) regardless of whether the member is 
serving under Title 32 or Title 10. An officer in Title 
10 status may not discipline a member in Title 32 status at the 
time the offense was committed. The same commander signed his 
retirement papers (AF Form 1160, Military Retirement Actions). 

 

Special Order AZ-108, dated 16 Jan 03, shows he was relieved from 
assignment with the 150th Aircraft Generation Squadron and 
honorably discharge from the New Mexico ANG effective 31 Oct 03, 
in the grade of technical sergeant, not staff sergeant. 

 

The applicant provides pages from an Air National Guard 
Commander’s Legal Deskbook, and documents pertaining to his 
Article 15, discharge documents, and a letter to the SAF. 

 

The applicant’s complete response, with attachments, is at 
Exhibit D. 

 

_________________________________________________________________ 

 

ADDITIONAL AIR FORCE EVALUATION: 

 

The Director, SAFPC recommends approval of the applicant’s 
advancement on the retirement list in the grade of technical 
sergeant. 

 

The Director states although there are no performance evaluations 
in the applicant’s record, based on the evidence of record, the 
applicant’s GTC abuse was not so egregious as to not warrant 
advancement when he would reach 30 years of active service. 

 

The complete SAFPC evaluation is at Exhibit E. 

 

_________________________________________________________________ 

 

APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: 

 

The applicant states out of all the credit card abuse cases in 
his unit, he was the only one penalized. The other members got 
their GTC cancelled, and within a year all were promoted. No one 
was allowed to go TDY without a GTC, yet he traveled several 
times after his disciplinary action and continued to use his GTC 
without any problems or financial problems, and he was demoted 
for this. 

 

The applicant provides a credit card spreadsheet, travel forms 
and TDY information. 


 

The applicant’s complete response, with attachments, is at 
Exhibit G. 

 

_________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by existing 
law or regulations. 

 

2. The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file. 

 

3. Sufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice. After reviewing 
the evidence of record, we are not persuaded that the applicant’s 
pay grade should be changed to technical sergeant retroactive to 
1 December 2003. While the applicant states an officer in Title 
32 status may not discipline a member under the Uniform Code of 
Military Justice (UCMJ), the evidence of record reflects his 
conduct was in violation of Article 92, UCMJ and section 20-12-
26, New Mexico State Code of Military Justice. The evidence also 
reflects that his nonjudicial punishment was reviewed by the 
staff judge advocate and determined legally sufficient. 
Therefore, we find no basis to grant the requested relief. 
Notwithstanding the above, we believe partial relief is 
warranted. In this respect, we note that Section 8964, of Title 
10, United States Code, allows for a member to retire in the 
highest grade in which they served on active duty satisfactorily 
as determined by the Secretary of the Air Force. This authority 
has been delegated to SAFPC. We note that due to an 
administrative error, the Air Reserve Personnel Center did not 
forward the applicant’s records to SAFPC for consideration of his 
advancement on the retired list. SAFPC has reviewed this 
application, and determined the applicant served satisfactorily 
in the grade of technical sergeant and should be advanced on the 
retired list in the grade of technical sergeant when he reaches 
30 years of active service. In view of the above, it is our 
opinion that corrective action is warranted in this case. 
Therefore, we recommend the applicant’s records be corrected to 
the extent indicated below. 

 

_________________________________________________________________ 

 

THE BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that the Secretary of 
the Air Force determined he served satisfactorily in the higher 
grade of technical sergeant (E-6) within the meaning of Section 
8964, Title 10, United States Code, and directs his advancement to 
that grade on the retired list effective the date of completion of 
all required service. 


 

_________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket Number 
BC-2010-04102 in Executive Session on 9 Jun 11, under the 
provisions of AFI 36-2603: 

 

, Panel Chair 

, Member 

, Member 

 

All members voted to correct the records, as recommended. The 
following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 27 Oct 10, w/atchs. 

 Exhibit B. Letter, ARPC/DPT, dated 10 Dec 10, w/atchs. 

 Exhibit C. Letter, SAF/MRBR, dated 7 Jan 11. 

 Exhibit D. Letter, Applicant, dated 7 Feb 11, w/atchs. 

 Exhibit E. Letter, SAF/MRBP, dated 17 Feb 11. 

 Exhibit F. Letter, AFBCMR, dated 18 Feb 11. 

 Exhibit G. Letter, Applicant, dated 28 Feb 11, w/atchs. 

 

 

 

 

 

 Panel Chair