RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-1999-00581
					INDEX CODE: 133.01

	 				COUNSEL:  None

	 				HEARING DESIRED:  No

APPLICANT REQUESTS THAT:

He be reinstated to the grade of staff sergeant (SSgt) (E-5).

APPLICANT CONTENDS THAT:

He completed the Air Force Return to Duty (RTD) Program in January 1998.  He has now been on active duty without any problems.  He has three children and a wife and living on an airman first class (E-3) pay is very hard to do.  His wife is sick most of the time and he has many medical bills.

In support of the appeal, applicant submits a personal statement and statements from the Commander, XX MDSS/CC and Flight Commander, Personnel and Administration.

Applicant's complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of airman (E-2).  

Applicant was tried by a general court-martial on two charges:  Charge I and its specifications alleged that on or about 2 April 1995 and 1 March 1996, applicant wrongfully appropriated the property of the United States government, including radios and other military property, in violation of Article 121, Uniform Code of Military Justice (UCMJ).  Charge II involved sixteen specifications of selling or wrongfully disposing of military property of the United States, in violation of Article 108, UCMJ.  The applicant pled guilty to the lesser included offense of wrongful appropriation in Charge I and certain language of the specifications was therefore substituted.  He pled guilty to four specifications of Charge II and eleven specifications were withdrawn by the convening authority.  On 18 December 1996, he was sentenced to a bad conduct discharge (BCD), confinement for 30 months and reduction to airman basic (AB).  

On 28 February 1997, the convening authority approved the findings and sentence, except for the part of the sentence extending to the BCD.  Pursuant to revised Article 58b, UCMJ, Section (b), waiver of the forfeitures of all pay and allowances was approved 31 December 1996, for a period of six months or upon completion of confinement, whichever is sooner.  Unless competent authority otherwise directed, upon completion of the sentence of confinement, applicant was required under Article 76a, UCMJ, to take leave pending completion of appellate review of the conviction. 

On 20 February 1998, the portion of the sentence promulgated in GCMO No XX, dated 28 February 1997, that provided for a BCD was suspended until 10 February 1999, at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted.  

On 23 June 1998, the sentence to a BCD, confinement for 30 months, and reduction to AB, was finally affirmed.  Any pay and allowances lost, as a result of the premature reduction in grade under Article 57(a)(1)(A), UCMJ, between 1 January 1997 and 28 February 1997, and required forfeitures collected as a result of Article 58, UCMJ (automatic forfeitures) would be restored.  That portion of the sentence providing for a BCD was suspended until 10 February 1999 with a provision of automatic remission thereafter unless the suspension was sooner vacated.

Applicant volunteered and was accepted into the RTDP.  He successfully completed the RTDP on 11 February 1998.

The applicant was promoted to the grade of airman, effective 14 March 1998 and A1C, effective 14 January 1999.

On 22 June 1999, the applicant was notified he was erroneously promoted to the grade of airman and A1C incurring a debt of $928.20.

In accordance with AFI 36-2502 (Airman Promotion Program), Table 1.1, Rule G, a member who has been convicted by court-martial, or is undergoing punishment/suspended punishment imposed by CM is ineligible for promotion.  Individuals may be promoted to AB through A1C who exceed time-in-grade (TIG) and time-in-service (TIS) requirements the day after the ineligibility condition no longer exists.  Since the BCD was suspended through 10 February 1999, the applicant was not eligible for promotion to airman until 11 February 1999, the day following the suspended discharge and would not be time-in-grade eligible to A1C until 11 December 1999, upon completion of the required ten months time-in-grade.

APR/EPR profile since 1988 reflects the following:

	PERIOD ENDING	EVALUATION OF POTENTIAL

		07 Mar 88		8
		07 Mar 89		9
		07 Mar 90		5  (New System)
		01 Sep 90		4
		01 Sep 91		5
		01 Jul 93		5
		01 Jul 94		5
		01 Jul 95		5
		01 Jul 96		3
		09 Jul 98		5
		09 Jul 99		5

AIR FORCE EVALUATION:

The XXXX XXXXX, Military Justice Division, Air Force Legal Services Agency, AFLSA/JAJM, reviewed this application and states that the applicant does not allege that any injustice or legal error occurred during his court-martial.  There is nothing in the file which indicates the occurrence of any error requiring corrective action, nor of any military injustice.  There further seems to be no substantive justification for restoring applicant’s grade other than his successful completion of the RTD Program and the two letters from his flight and squadron commanders supporting his request for a record review.  The file reflects that the applicant has received substantial clemency.  He has avoided a punitive discharge and can leave the Air Force at the appropriate time under honorable conditions.  Nonetheless, the Board does have the discretionary power to restore the applicant’s rank as a matter of equity.  Given the applicant’s failure to make a case for, or provide any evidence of an error or injustice in his case, there does not appear to be any compelling reasons to grant the relief requested.  The applicant’s request should be denied for failing to provide substantive argument for additional relief from his original sentence.  Further, after reviewing the available records, their office, from a military point of view, must conclude that administrative relief is not warranted.  There are no legal errors requiring correction, and the applicant has failed to provide evidence of an injustice calling for restoration to the grade and rank the applicant held at the time he committed his offenses.  Based on the evidence provided, they recommend denial of applicant's request.  

A complete copy of the evaluation is attached at Exhibit C.

The XXXXX, Inquiries/AFBCMR Section, AFPC/DPPPWB, also reviewed this application and states that the applicant has been advised through his servicing Military Personnel Flight (MPF) that he was not eligible to be promoted to airman until 11 February 1999, the day following the suspended discharge and will not be eligible for promotion to A1C until 11 December 1999 upon completion of the required 10 months (TIG) provided he is recommended by his commander and is not ineligible for any of the reasons outlined in AFI 36-2502, Table 1.1.  His date of separation is 31 July 2000.  If promoted to A1C on 11 December 1999, he would not meet the minimum 20 months TIG requirement to be promoted to senior airman (SrA) until 11 August 2001, after his 31 July 2000 date of separation.  If the applicant’s grade is restored to SSgt as he requests, he is not eligible for supplemental promotion consideration to technical sergeant (TSgt) for any previous promotion cycles as a result of the court-martial and suspended BCD until 10 February 1999.  

A complete copy of their evaluation, with attachment, is attached at Exhibit D.

The Staff Judge Advocate, AFPC/JA, also reviewed this application and states that they concur with the recommendations of AFLSA/JAJM and HQ AFPC/DPPPWB to deny applicant’s requested relief.

A complete copy of their evaluation is attached at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and states that on 18 December 1996, he found himself court-martialed and in military confinement.  His welcoming to the military correctional system was just the beginning of many injustices to come.  Many errors and injustices have occurred to him while serving on active duty since his RTDP was completed.  He has 17 years in the military and wants, more than ever, to serve the United States Air Force and use his training and experience to train others to accomplish the missions and goals of the USAF.

Applicant's complete response, with attachments, is attached at Exhibit G.

THE BOARD CONCLUDES THAT:

1.	The applicant has exhausted all remedies provided by existing law or regulations.

2.	The application was timely filed.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice warranting his promotion to the grade of sergeant.  After thoroughly reviewing the evidence of record and the documentation submitted with this case, we believe that some form of relief is warranted.  The Board is aware that the Return to Duty Program (RTDP) is extremely competitive and that relatively few members are approved for entry in the program.  While the Board does not condone the seriousness of the misconduct that resulted in the applicant receiving a court-martial, we note that the applicant has successfully completed the RTDP and has been returned to duty.  In view of the above, and in consideration of the applicant's rehabilitation, we recommend that his record be corrected to show that he was promoted to the grade of sergeant (E-4) on 30 November 1999.  

4.	Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice warranting reinstating applicant to the grade of staff sergeant.  As stated above, this Board does not condone the applicant's misconduct, and his reduction in grade, based on this misconduct, was appropriate punishment.  While we recommend that the applicant be provided an opportunity to be considered for promotion to the grade of staff sergeant and obtain eligibility for retirement, we do not believe, nor has he provided sufficient evidence to convince us, that he should be promoted to staff sergeant by action of the Secretary.  Correcting the record to show he was promoted to the grade of sergeant on 30 November 1999, will provide him with sufficient opportunity to fairly compete for promotion to the grade of staff sergeant and obtain sufficient years for retirement eligibility. 

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was promoted to the grade of sergeant (E-4), effective and with a date of rank of 30 November 1999.

The following members of the Board considered this application in Executive Session on 30 November 1999, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 19 Oct 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 27 May 99.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 10 Jun 99, w/atch.
   Exhibit E.  Letter, AFPC/JA, dated 5 Aug 99.
   Exhibit F.  Letter, AFBCMR, dated 23 Aug 99.
   Exhibit G.  Applicant's Response, dated 19 Sep 99.