RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00323
				INDEX CODE:  111.02

	APPLICANT	COUNSEL:  None

	SSN		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His date of  rank (DOR) be  reinstated  to its  original date of 1 Mar 98.  He would also like his effective date of promotion changed to allow him to receive back pay.

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APPLICANT CONTENDS THAT:

His squadron commander reinstated his DOR and because of administrative shortfalls it wasn’t accomplished.  He has tried through several administrative channels to have this corrected and is now appealing to the BCMR.  

Applicant's complete submission is attached at Exhibit A.

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STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of technical sergeant (TSgt).

The applicant was tentatively selected for promotion to Technical Sergeant during the 97E6 promotion cycle.  His promotion was placed on hold due to pending judgement by civilian court.  The applicant was convicted by a civilian court, which made him ineligible for promotion per AFI 36-2502.

The wing commander reinstated his promotion eligibility effective 30 Dec 99.

The applicant was considered and selected for promotion to TSgt for cycle 00E6.  He was promoted to the grade of TSgt effective and with DOR of 1 Sep 00.

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AIR STAFF EVALUATION:

The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed this application and stated under normal circumstances the applicant’s promotion would have been effective on 1 Mar 98, but his commander placed his promotion in a withhold status pending outcome of civil court proceedings.  The civilian court convicted the applicant and his punishment consisted of summary probation for 2 years, $500 fine, state penalty fund assessment, and 240 hours of community service.  In accordance with AFI 36-2502, Table 1.1, Rule O, an enlisted member is ineligible for promotion when convicted by civilian court or undergoing punishment, suspended punishment/sentence, probation, work release program, or any combination of these or similar court ordered conditions.  The ineligibility period for promotion based on conviction by civil court is equal to the maximum confinement for the same or closely related offense under the manual for court martial.  This conviction resulted in the applicant being ineligible for promotion for a period of 5 years.  The applicant was not exonerated of any wrongdoing, and as a result, his promotion to TSgt was neither appropriate nor warranted.  Based on the rationale provided they recommend denying the applicant’s request (Exhibit C).

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APPLICANT'S REVIEW OF AIR STAFF EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 9 Mar 2001, for review and response.  As of this date, no response has been received by this office.  

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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 probable 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 and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Although the applicant pled Nolo Contendre as part of a plea bargain, he was nevertheless convicted of a lesser offense by a civilian court rendering him ineligible for promotion until 19 May 02.  The applicant's new commander was apparently miscounseled that he could reinstate the applicant's promotion which he did and the applicant assumed the new rank with a date of rank of 1 Mar 98.  However, we note that only the Wing Commander can waive any portion of the ineligibility period; and secondly, the applicant was never exonerated of any wrongdoing.  Therefore, we believe the promotion effective 1 Mar 98, was neither appropriate or warranted.  The applicant has not established he was treated any differently than others similarly situated.  It appears the Wing Commander rendered some measure of clemency when he reinstated the applicant's promotion eligibility in Dec 99, well before the end of the ineligibility period and the applicant has been subsequently promoted.  In our opinion, the applicant has not established that he has been the victim of either an error or an injustice.  In view of the foregoing and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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.

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The following members of the Board considered this application in Executive Session on 8 May 01, under the provisions of AFI 36-2603.

		Panel Chairman
		Member
		Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 30 Jan 01, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFPC/DPPPWB, dated 15 Feb 01.
	Exhibit D.	Letter, SAF/MIBR, dated 9 Mar 01.

				
				Panel Chair