RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00653
COUNSEL:
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His retired grade of Major be changed to the retired grade of Lieutenant Colonel (Lt Col).
APPLICANT CONTENDS THAT:
His is incorrectly listed as eligible for retired pay at the officer grade of Major instead of Lt Col. In an ARPC/DPPS letter, dated 28 Jul 04, the applicant is addressed as a Major. However, a 6 Nov 03 Notification of Officer Grade stated he was a Lt Col.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant served in the Air Force Reserve during the matter under review.
Under Reserve Order BA-4192, dated 29 Sep 98, the applicant was promoted to the grade of Lt Col, effective 1 Oct 98.
On 29 Jul 03, the applicant was found guilty of the felony charge of 2nd Degree Sexual Assault of a Child in a Wisconsin civilian court. He was sentenced to 15 years of probation, 5 years of extended supervision (stayed), and 10 years in a state prison (stayed).
On 10 Oct 03, the applicant applied for transfer to the Retired Reserve, and requested he be allowed to retire with Honorable character of service.
On 2 Dec 03, the applicants commander recommended disapproval of the applicants request to transfer to the Retired Reserve due to the severe nature of the misconduct in which the applicant had been engaged. The commander recommended a less than Honorable discharge and a discharge in the grade of Major.
On 17 Jun 04, the Director of the Air Force Review Boards Agency, on behalf of the Secretary of the Air Force, determined the applicant did not serve satisfactorily in the grade of Lt Col, and directed he be transferred to the Retired Reserve in the grade of Major immediately.
Under Reserve Order EK-6469, dated 28 Jul 04, the applicant was transferred to the Reserve Retired List in the grade of Major, effective 17 Jun 04.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFPC/DPTTR recommends denial indicating there is no evidence of an error or an injustice. The applicant was promoted to the grade of Lt Col on 1 Oct 98. On 30 Sep 03, he was notified of proposed actions for discharge due to his conviction by civilian authorities and his plea of guilty of 2nd degree sexual assault of a child. Due to his eligibility for retirement, the applicant requested retirement in lieu of separation. His request was approved by ARPC/CC on 6 Nov 03, with a recommendation to the Secretary of the Air Force to conduct an officer grade determination. The office of the Secretary of the Air Force directed the applicant be transferred to the Retired Reserve immediately on 17 Jun 04. He was found to have performed unsatisfactorily in the grade of Lt Col and was transferred to the Retired Reserve in the grade of Major. The highest grade satisfactorily held by the applicant was Major as determined by the Secretary of the Air Force.
A complete copy of the AFPC/DPTTR evaluation, with attachments, is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 28 Jul 14 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.
FINDINGS AND CONCLUSIONS:
After careful consideration of applicants request and the available evidence of record, we find the application untimely. Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603. Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would be in the interest of justice to excuse the applicants failure to file in a timely manner.
THE BOARD DETERMINES THAT:
The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely.
The following members of the Board considered AFBCMR Docket Number BC-2014-00653 in Executive Session on 11 Dec 14 under the provisions of AFI 36-2603:
Chair
Member
Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 27 Dec 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPTTR, dated 8 Mar 14,
w/atchs.
Exhibit D. Letter, SAF/MRBR, dated 28 Jul 14.
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