RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-04303 

 COUNSEL: NONE 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

He be advanced on the Retired List to the highest grade he held, 
senior master sergeant (SMSgt, E-8). 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

It was his understanding that when an individual retires, his 
pension would revert back to the highest grade attained once he 
reached 30 years from the day he swore allegiance to serve. He 
swore allegiance on 7 Jul 1972. Over thirty years has passed. 

 

While under custody at the Marine Correctional Facility, he was 
approached by an Air Force lawyer who claimed he needed to sign 
documents in order to retire as a staff sergeant (SSgt, E-5). 
The lawyer told him that if he refused to sign, or tried to 
fight it, he risked not receiving anything at all. He was not 
legally represented by anyone, and with everything that he and 
his family had been through, the potential threat of losing more 
was not something he considered. 

 

The prosecutor stated he was not after his retirement as he had 
dedicated and devoted over 20 years of his life, and served 
honorably. Everything that transpired in court led him to 
believe, after serving his time and retiring as an E-4, he would 
be advanced to the grade of E-8 when his time on active duty and 
time on the Retired List totaled 30 years. 

 

His court-martial was a devastating blow to his career and his 
life which he did not want to re-live. He tried to put it 
behind him. He learned not to dwell in the past, but 
concentrate in the present and look toward the future. 
Nevertheless, this grievance is something he has always carried 
with him. However, to take action would have meant opening old 
wounds and reliving a very painful time in his life. He was not 
ready to do that in 2005. 

 

He was recently laid-off from his job and the economy is slow to 
recover. Moreover, he is over 58 years-old, collecting 
unemployment for the very first time in his life, struggling to 
find a job, and living off his modest retirement savings. 

 


He is in danger of losing his home to foreclosure, struggling to 
provide for his family and is now willing to face the demons of 
the past. 

 

In support of his request, the applicant provides a personal 
statement, copies of his DD Form 214, Certificate of Release or 
Discharge from Active Duty; AF Form 911, Senior Enlisted 
Performance Report (MSgt Thru CMSgt), and electronic 
communiqués. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant entered the Regular Air Force on 20 Nov 1972 and 
was progressively promoted to the grade of SMSgt, effective 
1 Ju1 1990. 

 

On 12 Aug 1993, the applicant’s commander preferred court-
martial charges against him for rape and indecent acts on divers 
occasions. The alleged victim was his younger daughter. 

 

Following a 23 Sep 1993 investigation of the allegations 
pursuant to Article 32 of the Uniform Code of Military Justice 
(UCMJ), the commander referred all charges and specification on 
4 Nov 1993 to a general court-martial. These referred charges 
were served on 5 Nov 1993. 

 

On 12 Nov 1993, after consulting with his lawyer, the applicant 
submitted his request for retirement in lieu of court-martial. 

 

On 14 Dec 1993, the wing commander recommended the retirement 
application in lieu of trial by court-martial be denied. 

 

On 4 Jan 1994, the convening authority disapproved his 
retirement request and directed that the processing of the 
application be suspended, citing the seriousness of the charges 
as warranting resolution prior to any decision regarding the 
retirement. 

 

On 16 Mar 1994 his court-martial commenced and his daughter 
recanted. He then initiated a pre-trial agreement (PTA) offer 
to the convening authority. Under the terms of the offer, the 
applicant would plead guilty to the indecent acts charge and 
specifications if the government would withdraw/fail to present 
evidence on the rape charge and its specifications. The PTA 
also stipulated that the convening authority would not approve a 
sentence which provided for: confinement in excess of three 
years, a punitive discharge, reduction in grade below E-4 or 
forfeitures beyond one-half of the accused’s pay; finally, the 
PTA also stated, “[r]etirement paperwork will be initiated as 
soon as possible under applicable regulations.” 


 

On 16 Mar 1994, the General Court-Martial Convening Authority 
(GCMCA) approved and signed the PTA. 

 

On 17 Mar 1994, the applicant modified his pleas in conformity 
with his PTA. On 17 Mar 1994, pursuant to his guilty plea, the 
court convicted him of the indecent acts charge and 
specifications. 

 

On 18 Mar 1994, members of the court sentenced him to: reduction 
in the grade of E-3, five years confinement, and a dishonorable 
discharge from the Air Force. 

 

On 24 May 1994, the GCMCA took final action on the case and in 
conformity to the PTA terms approved only so much of the 
sentence that provided for confinement for three years and 
reduction to E-4. 

 

On 31 Oct 1994, the GCMCA signed a memorandum directing the 
resumption of the applicant’s retirement, which he had suspended 
on 4 Jan 1994. 

 

On 1 Feb 1995, he applied for retirement and retired in the 
grade of senior airman (SrA, E-4) effective 1 Jul 1996. He 
served 21 years and 4 months of total active service. 

 

On 19 Jan 1996, the Secretary of the Air Force determined he 
would be advanced to the higher grade of SSgt when his time on 
active duty and his time on the retired list totaled 30 years 
(10 USC §8964). 

 

He was advanced to the higher grade of SSgt effective 1 Mar 
2005. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

HQ AFPC/DPSOR recommends denial. DPSOR determines an enlisted 
member's retired grade under 10 USC §8961(b): Unless entitled to 
a higher retired grade under some other provision of law, a 
Regular or Reserve of the Air Force not covered by subsection 
(a) who retires other than for physical disability retires in 
the regular or reserve grade that he holds on the date of his 
retirement. 

 

Because he held the grade of SrA on the date of his retirement, 
his record correctly reflects his retired grade as SrA. DPSOR 
forwarded his case to the Secretary of the Air Force for a 
decision as to whether the Air Force would advance him on the 
Retired List to a higher grade than SrA when his time on active 
duty and time on the Retired List totaled 30 years in accordance 
with 10 USC §8964: Higher grade after 30 years of service: 
warrant officers and enlisted members 


 

 (a) Each retired member of the Air Force covered by subsection 
(b) who is retired with less than 30 years of active service is 
entitled, when his active service plus his service on the 
retired list totals 30 years, to be advanced on the retired list 
to the highest grade in which he served on active duty 
satisfactorily (or, in the case of a member of the National 
Guard, in which he served on full-time duty satisfactorily), as 
determined by the Secretary of the Air Force. 

 

 (b) This section applies to (1) warrant officers of the Air 
Force; (2) enlisted members of the Regular Air Force; and (3) 
reserve enlisted members of the Air Force who, at the time of 
retirement, are serving on active duty (or, in the case of 
members of the National Guard, on full-time duty). 

 

On 19 Jan 1996, the Secretary of the Air Force determined he 
would be advanced to the higher grade of SSgt when his time on 
active duty and his time on the retired list totaled 30 years 
(10 USC §8964). With his 1 Mar 1975 Total Active Federal 
Military Service Date (TAFMSD), adjusted from 20 Nov 1972 for 
lost time from 18 Mar 1994 to 28 Jun 1996, he was advanced to 
the higher grade of SSgt effective 1 Mar 2005. The Secretary of 
the Air Force determined that he did not serve satisfactorily in 
any higher grade than SSgt. 

 

The complete DPSOR evaluation is at Exhibit C. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

He takes exception to SAF/MRBR’s [sic] recommendation of denial. 
He realizes that these are tough times; there is a lack of funds 
due to a bad economy, as well as the sustaining of two wars. 
However, to deny him his pension based on his highest grade 
attained is inadequate. SAF/MRBR [sic] implied this by stating, 
"If the SecAF reconsiders his case and chooses to advance the 
applicant on the Retired List to the grade of SMSgt, the 
advancement would be effective 1 Mar 2005 upon completion of 
30 years on active duty." As this was the best recommendation, 
he feels the reader may understand his frustration and 
consternation. Not only did he plead guilty with the condition 
to retire, but during the course of the court-martial there were 
no discussions that he would not be able to retire at his 
highest grade attained while serving in active duty. He asks 
the reader to refer to DD Form 214, dated 23 Jan 2012 for more 
details. Moreover, he completed 20 years of service on 19 Nov 
1992 and received his separation certificate with “honorable” 
discharge from the Air Force effective that same day. If he had 
elected to retire at that point, his 20 years were guaranteed 
with a rank as a SMSgt. Furthermore, since he was not court-
martialed for deception to the government for personal financial 
gains, such as waste, fraud and abuse, it is only fitting that 


he be allowed to retain his highest grade achieved while in 
active service. Denial of this request will serve no useful 
purpose other than to further penalize him and further victimize 
his family. 

 

His complete submission, with attachment, is at Exhibit D. 

 

________________________________________________________________ 

 

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. 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 office of primary responsibility and adopt its 
rationale as the basis for our conclusion the applicant has not 
been the victim of an error or injustice. In this regard, we 
note that Section 8964, Title 10, United States Code, allows the 
advancement of enlisted members to the highest grade in which 
they served on active duty satisfactorily as determined by the 
Secretary of the Air Force. The Secretary of the Air Force has 
delegated this authority to the Secretary of the Air Force 
Personnel Council (SAF/PC). The SAF/PC made the determination 
that the applicant did serve satisfactorily in the highest grade 
of SSgt and that he be advanced on the USAF Retired List by 
reason of completing a total of 30 years active service plus 
service on the Retired List, effective 1 Mar 2005. The 
applicant’s response to the Air Force evaluation is noted; 
however, we do not find his uncorroborated assertions 
sufficiently persuasive to override the rationale provide by the 
OPR. Therefore, in the absence of evidence to the contrary, we 
find no compelling basis to recommend granting the relief sought 
in this application. 

 

4. The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issue(s) 
involved. Therefore, the request for a hearing is not favorably 
considered. 

 

________________________________________________________________ 

 

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-
2011-04303 in Executive Session on 5 Sep 2012, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

, Member 

 , Member 

 

The following documentary evidence was considered in AFBCMR BC-
2011-04303: 

 

 Exhibit A. DD Form 149, dated 23 Jan 2012, w/atchs. 

 Exhibit B. Applicant’s Master personnel Records. 

 Exhibit C. Letter, HQ AFPC/DPSOR, dated 8 Mar 2012. 

 Exhibit D. Letter, SAF/MRBR, dated 21 Mar 2012. 

 Exhibit E. Letter, Applicant, dated 15 Apr 2012, w/atch. 

 

 

 

 

 Panel Chair