RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-05366
			COUNSEL:  
			HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

She be advanced on the Retired List to the highest grade she 
held, Chief Master Sergeant (CMSgt, E-9).

________________________________________________________________

APPLICANT CONTENDS THAT:

She received an Article 15 demoting her to the rank of Senior 
Master Sergeant (SMSgt, E-8); however she had already 
successfully served over 3 years in the rank of CMSgt at the 
time of the incident and qualified for the retirement in the 
grade of CMSgt.  Her Date of Rank (DOR) to CMSgt was 1 Feb 2006.  
At the time of the incident on 9 Aug 2009, she was on terminal 
leave with an approved retirement date of 1 Oct 2009.  She had 
27 years of active duty service.

In support of her request, the applicant provides a personal 
statement, photographs and various other documents associated 
with her request.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 7 Sep 1982 and 
was progressively promoted to the grade of CMSgt, effective 
1 Feb 2006.

On 22 Dec 2008, the applicant was issued Special Order AC-
002320, in which she would be retired in the grade of CMSgt 
effective 1 Nov 2009.

On 12 Jan, 2010, she was issued Special Order AC-002783, in 
which she would be retired in the grade of SMSgt effective 1 Feb 
2010.

On 31 Jan 2010, she retired in the grade of SMSgt effective 
1 Feb 2010.  She served 27 years, 4 months, and 24 days of total 
active service.

On 9 Apr 2010, the Secretary of the Air Force determined she 
would not be advanced to the higher grade of CMSgt when her time 
on active duty and her time on the retired list totaled 30 years 
(10 USC § 8964).

On 7 Sep 2012, the applicant’s time on active duty and her time 
on the retired list totaled 30 years.

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AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial.  DPSOR states that the applicant 
was not allowed to retire in the rank of CMSgt due to an Article 
15 demoting her to the rank of SMSgt.  Based on the 
documentation she provided in 2010, on 9 Aug 2010, the Secretary 
of the Air Force Personnel Council (SAFPC) found that she did 
not serve satisfactorily in the higher grade of CMSgt and that 
she would not be advanced under the provisions of 10 USC § 8964.

The complete DPSOR evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states that the applicant has in fact served honorably 
for the requisite 3 years in the rank of CMSgt under 10 USC § 
8964.  She was a CMSgt in the Air Force and had approximately 
27 years of active duty service.  She served in the rank of 
CMSgt from 1 Feb 2006 and served honorably until 9 Aug 2009, 
wherein she was allegedly involved in an altercation resulting 
in Article 15 action against her.  The altercation occurred 
while she was already on terminal leave for retirement.  At the 
time, she had an approved retirement date of l Oct 2009. Despite 
maintaining her innocence as to any wrong-doing throughout and 
her role as the victim of that altercation, she chose to accept 
her lawyer’s advice to accept the Article 15 and on 4 Dec 2009, 
she was demoted to the rank of SMSgt.  She was given the Article 
15 and reduced in rank despite having more credible evidence on 
her side as to the facts and circumstances of the altercation.  
Her reduction resulted in a sizable loss in retirement pay that 
far exceeds any punishment rationale for her defending herself 
in 2009 against an unprovoked attack. Retirement pay at the rank 
of SMSgt for 20 years results in an approximate loss of 
$140,000.

Counsel further asserts the advisory opinion is in error and 
contains matters inapplicable to the applicant.  AFPC/DPSOR 
correctly states the requested action and basis for request. 
However, the factual portion and the comments listed in the 
recommendation portion appear to be in error and, in one 
instance, contains information that does not pertain to the 
applicant.  DPSOR states the applicant did not serve 
satisfactorily in the higher grade of CMSgt and that she should 
not be advanced.  This is in error given she served in the rank 
of CMSgt from 1 Feb 2006 until 9 Aug 2009, which is well in 
excess of three years required to serve satisfactorily.  
Furthermore, DPSOR states "the member provided SAF/PC with 
documentation in 2010, SAF/PC did not grant her the 
advancement."  This is in error because prior to the application 
to the AFBCMR, she had in fact not provided any documentation 
regarding her request for restoration of rank.  She would not 
have been eligible to seek such restoration until she reached 
30 years of service which would have been in Sep 2012.  There 
would be no reason to submit paperwork in 2010 seeking 
correction of her rank since she was not eligible for rank 
restoration until 2012.  The advisory opinion appears to contain 
partial misinformation and incorrectly concludes that the 
applicant is not eligible for advancement on the retirement list 
and this conclusion is in error.  The language of 10 USC § 8964 
favors the applicant’s claim.  From the plain language of the 
statute, she is eligible for advancement on the retired list to 
the highest grade on active duty served satisfactorily.  Her 
active duty time and her time on the retired list has now 
reached 30 years and she is eligible to seek and attain her 
previous rank back for retirement purposes and she respectfully 
requests restoration to the rank of CMSgt.  She served honorably 
for 27 years and had one blemish on an otherwise spotless 
career, for an incident where she accepted non-judicial 
punishment rather than risk anything else so that she would not 
jeopardize her retirement in her later years.  Given her medical 
injuries and physical condition, as stated in her submission, 
this was a valid concern and she chose the lesser of two evils.  
However, the repercussions from this non-judicial punishment 
have now far exceeded any bounds of fairness or equity.  To lose 
permanently her retirement pay at her highest enlisted grade is 
an insult for a woman who served proudly and with distinction.

Counsel’s complete submission, 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 timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  The 
applicant is requesting that the determination of the Secretary 
of the Air that she did not serve satisfactorily in the grade of 
CMSgt be reversed contending that she served honorably for the 
requisite three years in the rank of CMSgt under 10 USC 
§ 8964 and that the altercation occurred while she was already 
on terminal leave.  After careful consideration of the evidence 
of record, it is our opinion that the applicant has failed to 
sustain her burden of proof of the existence of an error or 
injustice warranting corrective action.  In this respect, in 
rendering a highest grade satisfactorily held determination, the 
challenge of the Personnel Council was to determine whether the 
applicant displayed her capability and willingness to 
competently discharge the responsibilities of the higher grade 
in a sustained manner and adhered to the necessarily high 
standards of Air Force conduct in a consistent manner within a 
reasonable time period while wearing the rank under review.  
Although the applicant had over 3 years of time in grade when 
her misconduct occurred, the evidence reflects that her conduct 
was so egregious that it violated all standards of good order 
and discipline and violated basic tenants expected of all Air 
Force members.  Therefore, we believe SAFPC’s decision not to 
advance the applicant to the higher grade of CMSgt was proper 
and in compliance with the provisions of the governing 
instructions, which implement the law.  Accordingly, we agree 
with the opinion and recommendation of the Air Force office of 
primary responsibility and adopt the rationale expressed as 
basis for our conclusion that the applicant has not been the 
victim of an error or injustice.  

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 this application 
in Executive Session on 7 Nov 2013, under the provisions of AFI 
36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered in AFBCMR BC-
2012-05366:

    Exhibit A.  DD Form 149, dated 13 Nov 2012, w/atchs.
    Exhibit B.  Applicant’s Master personnel Records.
    Exhibit C.  Letter, AFPC/DPSOR, dated 8 Jul 2013, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Aug 2013.
    Exhibit E.  Letter, Counsel, dated 29 Aug 2013, w/atchs.



                                   
                                   Panel Chair


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