RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2010-01561

            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His records be corrected to reflect the grade of  master  sergeant  when
his time on active duty and the Retired List total 30 years.

2.  His records be corrected to reflect he retired in the  grade  of  master
sergeant on 1 Aug 00, to correct an injustice committed by the  staff  judge
advocate (SJA) at Nellis Air Force Base.
_________________________________________________________________

APPLICANT CONTENDS THAT:

The SJA did not agree with the General Court Martial  (GCM)  conviction  and
delayed his retirement so he would retire in the  grade  of  staff  sergeant
rather  than  master  sergeant.   The  SJA  contradicted   his   commander’s
authority and his decision to retire effective 1 Apr 00.   This  was  unjust
because the SJA advised his commander to conduct a court martial instead  of
an administrative discharge.  The  governing  Air  Force  Instruction  (AFI)
states, that a member should not be held past their high year of tenure  for
the purpose of an involuntary discharge.

In support of the appeal, the applicant provides copies of his DD Form  214,
Certificate of Release or Discharge from  Active  Duty,  extracts  from  his
military personnel records, and other documentation related to his request.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force (RegAF) as an  airman  basic
on 13 Feb 80 and was progressively promoted to the grade of master  sergeant
on 1 Apr 97.  He reenlisted in the RegAF on 14 Apr 99, for a period of  four
years.

Court martial charges were referred against the applicant  for  drug  abuse,
and on 6 Dec 99, a GCM found him guilty of wrongful use of cocaine.  He  was
sentenced to a reduction to the grade of staff sergeant and confinement  for
45 days.  On 1 Aug 00, he was retired in the grade of  staff  sergeant.   He
completed a total of 20 years, 4 months, and 15 days of active duty.

The Secretary of the Air Force Personnel Council (SAFPC) conducted  a  grade
determination on the  applicant,  and  determined  that  he  did  not  serve
satisfactorily in the higher grade of  master  sergeant,  but  that  he  did
serve satisfactorily in the grade of technical sergeant, and that he  should
be advanced to the grade of technical sergeant effective  17  Mar  10,  when
his time on active duty and time on the Retired List  total  30  years.   On
17 Mar 10, he was advanced on the Retired List to  the  grade  of  technical
sergeant with an effective date of 17 Mar 10.

The remaining relevant facts pertaining to this  application  are  contained
in the letter prepared by the appropriate office of the Air Force, which  is
attached at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial of the applicant’s request that he  be  retired
in the grade of master sergeant and that he not be advanced on  the  Retired
List to any higher  grade  than  technical  sergeant  as  has  already  been
determined by the SAFPC.

DPSOR states the applicant has not  provided  sufficient  evidence  the  GCM
conviction or sentence were the result of error or injustice.

The complete AFPC/DPSOR evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He  submitted  an  application  for  retirement  which  was  signed  by  his
commander and not forwarded to the  designated  authority  for  approval  or
disapproval.  He did not  voluntarily  extend  for  discharge  action.   His
commander also recommended a waiver of discharge, because  he  met  all  the
criteria.  His records never went before a board and he  was  only  notified
that discharge action would be initiated.

The SJA had the option to involuntarily discharge him and not pursue  a  GCM
conviction.  The SJA chose a GCM and asked the court to sentence him to  ten
years confinement, reduction to the grade of airman basic and a bad  conduct
discharge.  The SJA did not agree with  the  court  and  chose  to  initiate
discharge action so he would retire as a staff sergeant rather  than  master
sergeant.  This amounts to double jeopardy.  The  SJA  held  him  on  active
duty involuntarily from 1 Apr 00 to 1 Aug 00 to conduct a discharge that  he
knew would never take place.

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

_________________________________________________________________

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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  Regarding the applicant’s request that  he
be retired in the grade of master sergeant, we note that  a  GCM  found  him
guilty of using cocaine, and he was sentenced to a reduction  to  the  grade
of staff  sergeant  and  confinement  for  45  days.   While  the  applicant
suggests that he was illegally held beyond his High Year of Tenure,  and  if
he had been allowed to retire on 1 Apr  00,  he  would  have  been  able  to
retire in the grade of master sergeant, we note that on 17 Feb 00,  the  Air
Force notified him of action under AFI 36-3208,  for  involuntary  discharge
and that being subject to  action  initiated  under  this  authority,  is  a
restriction to retirement.  Therefore, his retirement application could  not
be processed.  Further, after review of all the evidence in the  applicant’s
case, the Secretary of the Air Force Personnel Council  determined  that  he
did not serve satisfactorily in the higher grade  of  master  sergeant.   We
agree with their opinion as drug abuse is a serious  departure  of  what  is
expected  from  a  senior  non-commissioned  officer.   In   addition,   the
applicant suggests the SJA committed an injustice by advising his  commander
to conduct a court-martial instead of an administrative discharge.  We  note
that insufficient evidence has been presented to substantiate his claim  and
we are not persuaded the SJA caused the applicant to be  the  victim  of  an
injustice as he alleges.  Therefore, in  the  absence  of  evidence  to  the
contrary, we find no 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  Docket  Number  BC-2010-01561
in Executive Session on 11 Jan 11, under the provisions of AFI 36-2603:

      Mr. -----------, Panel Chair
      Ms. -----------, Member
      Ms. -----------, Member

The following documentary evidence was considered:

      Exhibit A.  DD Form 149, dated 21 Apr 10, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPSOR, dated 18 Jun 10.
      Exhibit D.  Letter, SAF/MRBR, dated 16 Jul 10.
      Exhibit E.  Letter, Applicant, dated 6 Aug 10.




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               Panel Chair