RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-04134
		COUNSEL:  NONE
	XXXXXXX	HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

He be advanced on the Retired List to grade of Master Sergeant 
(MSgt, E-7).

________________________________________________________________

APPLICANT CONTENDS THAT:

He was demoted from the grade of MSgt to the grade of Technical 
Sergeant (TSgt, E-6) due to false assault charges brought 
against him.  These charges were dropped and he was acquitted in 
court.

In support of his request, the applicant provides copies of his 
DD Form 214, Certificate of Release or Discharge from Active 
Duty, certificates, citations and various other documents 
related to his request.

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

________________________________________________________________

STATEMENT OF FACTS:

On 30 Apr 1979, the applicant entered the Regular Air Force and 
was progressively promoted to the grade of MSgt.

On 5 Jul 2001, the applicant received an Article 15 for assault.  
His punishment consisted of a reduction to the grade of TSgt 
with a date of rank of 5 Jul 2001.

On 1 Oct 2001, the Secretary of the Air Force determined he did 
not serve satisfactorily in any higher grade and he would not be 
advanced under the provisions of 10 USC § 8964.

On 29 Nov 2001, he was issued Special Order AC-004967, reflects 
he retired in the grade of TSgt effective 1 Dec 2001.  He served 
22 years, 6 months, and 28 days of total active service.

________________________________________________________________

?
AIR FORCE EVALUATION:

AFPC/DPSOE recommends denial.  DPSOE states that the applicant 
contends the charges against him were dropped and he was 
acquitted; however, he provides no documentation to support his 
contention.

The complete DPSOE evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his request the applicant provides a copy 
of a court report reflecting the charges against him were 
withdrawn.

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

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION

The Legal Advisor states that he cannot make a recommendation on 
the merits.  The alleged assault in Jan 2000 seems unlikely as a 
basis for an Article 15 offered in Jul 2001, especially since 
according to the applicant the assault charge was dropped less 
than a week after the applicant was charged.  Why would a 
commander offer Artic1e 15 punishment in Jul 2001 for an 
incident that had already been dropped 18 months before?  
Inevitably, the BCMR Legal Advisor wonders whether the Article 
15 and hence the demotion was based on a later incident 
unrelated to the dropped charges from Canada.  Of course, 
lacking answers to these questions, he cannot make a 
recommendation on the merits and urges the Board to obtain 
clarification on these questions before voting on the case.

The complete BCMR Legal Advisory is at Exhibit F.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The only proof he has regarding his innocence are the documents 
he obtained from the Canadian Courts.  The case was dismissed 
and never went to court.  His commander at that time told his 
attorney that if it were up to him he would throw him in jail 
and throw away the keys.  Numerous months passed and another 
commander was assigned who initiated Article 15 punishment.  He 
regrets any embarrassment or shame he brought to his unit and 
his country, but he is not guilty of any crime. 


The applicant’s complete submission is at Exhibit H.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION

SAF/MRBP recommends approval.  MRBP states that in accordance 
with 10 USC § 8964 an active duty enlisted member 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.  The 
Secretary has the authority to establish regulations to 
determine "satisfactory" service.  In accordance with AFI 36-
3203, Service Retirements, Paragraph 7.4.2 SAFPC announces the 
SAF decision "when the highest grade held was terminated for 
cause (unless member held the higher grade for at least 6 months 
during a previous period of service and received an honorable 
discharge in the higher grade)."  This language has been 
interpreted by AFPC/JA to mean that a member who has held the 
higher grade for at least 6 months during a previous period of 
service and received an honorable discharge in the higher grade 
is to be advanced to that higher grade.  Part of the rationale 
for this interpretation is that a determination that the member 
did not serve satisfactorily would be contrary to the honorable 
discharge the member received in the higher grade.

The complete MRBP advisory is at Exhibit I.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 24 Mar 2014, a copy of the Air Force evaluation was 
forwarded to the applicant for review and comment within 
30 days.  As of this date, no response has been received by 
this office (Exhibit J).

________________________________________________________________

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 an error or injustice warranting 
relief.  After carefully reviewing this application, we agree 
with the opinion and recommendation of SAF/MRBP and adopt the 
rationale expressed as the basis for our decision that the 
applicant has been the victim of either an error or injustice.  
Therefore, in the interest of equity and justice, we recommend 
the applicant’s records be corrected to show that he was 
advanced to the grade of MSgt on the United States Air Force 
Retired List by reason of completing 30 years service.  
Accordingly, we recommend his records be corrected as set forth 
below.

________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that on 30 Apr 
2009, he was advanced to the grade of Master Sergeant on the 
United States Air Force Retired List by reason of completing 
30 years service, under Title 10, United States Code, §8964.

________________________________________________________________

The following members of the Board considered this application 
in Executive Session on 24 Apr 2014, under the provisions of AFI 
36-2603:

      , Chair
      , Member
      , Member

All members voted to correct the record as recommended.  The 
following documentary evidence was considered in AFBCMR BC-2012-
04134:

    Exhibit A.  DD Form 149, dated 7 Sep 2012, w/atchs.
    Exhibit B.  Applicant’s Master personnel Records.
    Exhibit C.  Letter, AFPC/DPSOE, dated 16 Nov 2012.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Dec 2012.
    Exhibit E.  Letter, Applicant, dated 15 Jan 2013, w/atchs.
    Exhibit F.  Letter, SAF/MRB Legal Advisory, dated 7 Nov 2013.
    Exhibit G.  Letter, SAF/MRBC, dated 7 Nov 2013.
    Exhibit H.  E-mail, Applicant, dated 12 Nov 2013.
    Exhibit I.  Letter, SAF/MRBP, dated 28 Feb 2014.
    Exhibit J.  Letter, SAF/MRBR, dated 24 Mar 2014.




                                   
                                   Chair

4


4