RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01345
		INDEX CODE:  131.09
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His retirement grade of senior airman (E-4) be changed to reflect technical sergeant (E-6) and that he receive consideration for reinstatement to the grade of master sergeant (E-7).

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APPLICANT CONTENDS THAT:

The punishment he received as a result of his court-martial conviction for marijuana use, which will continue until the year 2009, has been extremely hard for him to accept mentally and physically because he is unable to live up to his own expectations.  The amount of retirement pay he will lose over a ten-year period is approximately $59,760.  He has already lost $23,000, which he feels is enough to pay back for one mistake.  Two similar cases in his squadron don't come anywhere near the punishment he received.  As evidenced by his records, he had a great career except for one extremely foolish act, his punishment was justified, but continuing punishment through the next ten years of his retirement is excessive and unjustified when compared to his contributions.  

In support of his request, applicant provided a personal statement, a copy of his court martial worksheet, a copy of the SAF Personnel Council (SAF/PC) decision, and documentation associated with his request for waiver of discharge action.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 24 Apr 79.  He was progressively promoted to the grade of master sergeant, having assumed that grade effective and with a date of rank of 1 Oct 95.

On 16 Dec 98, applicant was tried by a special court-martial for wrongful use of marijuana.  He was found guilty and sentenced to reduction to the grade of senior airman, 3 months of hard labor without confinement, and 2 months restriction.  His sentence was approved on 18 Feb 99.  On 30 Mar 99, the applicant submitted an application for voluntary retirement to be effective 1 May 99.  Section 8964, Title 10 United States Code, allows the advancement of enlisted members on the Retired List to the highest grade in which they satisfactorily served on active duty as determined by the Secretary of the Air Force.  On 26 Apr 99, the SAF/PC concluded that he had not served satisfactorily in the grade of master sergeant, but did serve satisfactorily in the grade of technical sergeant and that he will advance to that grade on the Retired List effective 24 Apr 09.  The applicant was honorably retired from the Air Force on 30 Apr 99 in the grade of senior airman.  He served 20 years and 7 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.  JAJM states that the applicant was a senior NCO with 19 years of service at the time he provided a urine sample that tested positive for the presence of a metabolite of marijuana.  The thrust of his defense at his trial was that he had a good military character.  His defense introduced Enlisted Performance 
Reports (EPRs) from 1994 - 1998 to show that he did not knowingly use marijuana.  Earlier EPRs might have opened the door to show that he provided a urine sample in 1993 which tested positive for methamphetamine.  Also, his National Agency Questionnaire, dated 23 May 95, showed admitted use or possession of marijuana in June 1975.  During sentencing the applicant asked that the court members consider allowing him to remain in the Air Force.  The court members evidently favorably considered his plea as the sentence imposed did not include a bad conduct discharge.  However, the members did consider the three-grade reduction to be appropriate.  The officer and enlisted members were well aware how much the applicant would receive in retirement benefits if he retired as an E-7.  A Monthly Retirement Pay Estimate was introduced into evidence as a defense exhibit.  They took into account this information as well as the applicant's military record and decided on an appropriate sentence, which preserved his eligibility to retire albeit at a lower grade.  He got what he asked for and should not now be heard to argue for a different, more beneficial punishment.  

The AFBCMR's ability to correct records related to courts-martial is limited.  Apart from the exceptions which permit correction of a record to reflect actions taken by reviewing authorities and correction of records related to action on the sentence of courts-martial for the purpose of clemency, the AFBCMR is without authority to reverse, set aside, or otherwise expunge a court-martial conviction occurred on or after 5 May 50.  The court-martial was properly conducted and he was afforded the rights accorded by law.  He provided no evidence of a clear error or injustice related to the sentence.  He has already been the beneficiary of executive clemency with the decision of the SAF/PC to advance him to the grade of technical sergeant upon his 30-year anniversary.  The JAJM evaluation is at Exhibit C.

AFPC/DPPRRP reviewed applicant's request and recommends denial.  DPPRRP states that the law which allows for advancement when active service plus service on the retired list totals 30 years, is very specific in its application and intent.  SAF/PC made the determination that he did not serve satisfactorily in any grade higher than technical sergeant, within the meaning on the law, and directed his advancement to that grade on the Retired List effective 24 Apr 09.  He is not entitled to advancement to master sergeant as the Secretary has determined that he did not serve satisfactorily in that grade.  There are no other provisions of law which would allow for advancement prior to completion of 30 years service on the retired list.  The DPPRRP evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 18 Oct 02 for review and comment within 30 days.  As of this date, this office has received no response.

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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 error or injustice that would warrant corrective action.  The Board majority is not persuaded by the evidence provided in support of his appeal that the decision of the Personnel Council was improper or contrary to the provisions of the governing regulations; or that the decision was based on anything other than his own misconduct.  Therefore, the Board majority agrees with the opinions and recommendations of the Air Force offices of primary responsibility and adopts their rationale as the basis for their conclusion that the applicant has not been the victim of an error or injustice.  In the absence of persuasive evidence to the contrary, the Board majority finds no compelling basis to recommend granting the relief sought in this application.

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THE BOARD RECOMMENDS THAT:

A majority of the panel finds insufficient evidence of error or injustice and recommends the application be denied.

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The following members of the Board considered Docket Number 02-01345 in Executive Session on 15 Jan 03, under the provisions of AFI 36-2603:

By a majority vote, the Board voted to deny the relief requested.  Mr.   voted, on the basis of clemency, to allow his retirement in the grade of Technical Sergeant, but did not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Apr 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 14 Aug 02.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 15 Oct 02, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 18 Oct 02.

                                   

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
               FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of APPLICANT

	I have carefully reviewed the evidence of record and the recommendation of the Board members.  A majority found that the applicant had not provided sufficient evidence of error or injustice and recommended the case be denied.  I concur with that finding and their conclusion that relief is not warranted.  Accordingly, I accept their recommendation that the application be denied.

	Please advise the applicant accordingly.