RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01708
		INDEX CODE:  131.09

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His grade of staff sergeant (E-5) be reinstated.

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APPLICANT CONTENDS THAT:

Permanent reduction in grade is excessive punishment for one conviction of wrongful use of marijuana based on one positive urinalysis.  He is petitioning for a little lenience by requesting that his highest grade attained (E-5) be reinstated.

No supporting documentation was provided.  The applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is 13 Apr 81.  He was progressively promoted to the grade of staff sergeant (E-5), with an effective date and date of rank of 1 Dec 86.  He was reduced to the grade of senior airman (E-4), with an effective date of 29 Jun 01, pursuant to Special Court-Martial Order No ---, dated 28 Aug 01.

The following is a resume of the applicant’s Airman Performance Report/Enlisted Performance Report ratings subsequent to his promotion to the grade of E-5 (oldest to the most recent):  8 (overall evaluation 0-9), 8, 9, 5 (new rating system - Immediate Promotion), 4 (Ready for Promotion), 4, 4, 4, 3 (Consider), 4, 4, 5, 5, 2 (Not Recommended at this Time - Referral), and 4.

On 26-29 Jun 01, the applicant was tried before a special court-martial at --- AFB, CO.  He was charged with a single specification of wrongful use of marijuana, on or about 15 Nov 00, in violation of Article 112a, UCMJ.  Contrary to his pleas of not guilty, he was found guilty.  On 29 Jun 01, the applicant was sentenced to a reduction in grade from staff sergeant (E-5) to senior airman (E-4), 3 months of hard labor without confinement, and forfeiture of $500.00 per month for 2 months.  On 28 Aug 01, the convening authority approved only so much of the sentence as provided for the reduction and forfeitures.  The portion of the sentence concerning hard labor without confinement was disapproved.

On 31 Aug 01, the applicant was relieved from active duty in the grade of senior airman (E-4) and, effective 1 Sep 01, retired in the grade of E-4 under the provisions of AFI 36-3203 (Maximum Service or Time-In-Grade).  He had completed a total of 20 years, 4 months and 18 days of active service for retirement.

On 17 Sep 01, the Air Force Personnel Council (SAF/PC) made a determination that the applicant did not serve satisfactorily in any higher grade than senior airman (E-4).

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied.  JAJM disagrees with the applicant’s assertion that the sentence is too severe.  JAJM stated that the applicant was an NCO with almost 20 years of service at the time he provided a urine sample that tested positive for the presence of a metabolite of marijuana.  During the trial, the forensic expert testified that the level of marijuana metabolite in applicant’s urine was 201 nanograms, significantly above the DoD cutoff level of 15 nanograms.  Although the applicant pleaded not guilty, at least two-thirds of the officer and enlisted members were convinced beyond a reasonable doubt that applicant had wrongfully used marijuana.  The applicant specifically asked the court to remember his 20 plus years of service and not impose a bad conduct discharge.  Both applicant and his attorney submitted matters for the convening authority to consider; specifically, set aside the hard labor without confinement.  JAJM stated that the applicant’s argument to the court members was for any punishment but the discharge ‑‑ he was successful.  His argument to the convening authority was for approval of the reduction and forfeitures but disapproval of the hard labor without confinement ‑‑ he was successful.  The applicant now asks the AFBCMR to disapprove the reduction as too harsh ‑‑ it is not.  The court members took into account the applicant’s military record and desire to retire when deciding on an appropriate sentence, as did the convening authority when taking action on the sentence.  Applicant’s pleas to the members and the convening authority secured exactly what he asked for.  The applicant’s court-martial was properly conducted and he was afforded the rights accorded by law.  The applicant has provided no evidence of a clear error or injustice related to the sentence.  Therefore, there is no reason required by law to grant the relief requested.

The AFLSA/JAJM evaluation is at Exhibit C.

HQ AFPC/DPPRRP recommends the application be denied.  DPPRRP stated that Section 8964, Title 10, USC, allows the advancement of enlisted members (when their active service plus service on the retired list totals 30 years) on the retired list to the highest grade in which they served on active duty satisfactorily as determined by the Secretary of the Air Force.  The Secretary of the Air Force has delegated this authority to the Air Force Personnel Council (SAF/PC).  On 17 Sep 01, SAF/PC made the determination that the applicant did not serve satisfactorily in any higher grade than senior airman (E-4).  DPPRRP stated that the law which allows for advancement of enlisted members of the Air Force, when their active service plus service on the retired list totals 30 years, is very specific in its application and intent.  SAF/PC’s determination is final for all purposes of law.  In accordance with Section 8961, Title 10, USC, the applicant was correctly retired in the grade of senior airman (E-4), which was the grade he held on the date of his retirement.  There are no other provisions of law that would allow for advancement of enlisted members.  All criteria of the pertinent laws have been met in this regard and no error or injustices occurred in the applicant’s retirement, grade determination or advancement action.

The HQ AFPC/DPPRRP evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and indicated that the briefness of his statement is to ask that the Board look at how much it would cost if he waited 10 years to be reinstated back to his highest rank.  His request is not to disprove his guilt; he only asks that the Board grant him lenience from having to pay $25,000.00 over a 10-year period and allow his mistake to only cost him what it will be at the end of the Board’s recommendation.  In support of his request, applicant submits a letter from his father and a copy of his DD Form 149.

The applicant’s complete submission, with attachments, is at Exhibit F.

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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.  We took notice of the applicant's complete submission in judging the merits of the case.  However, we agree with the opinions and recommendations of the respective Air Force offices and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  From comments contained in his rebuttal, it appears the applicant may believe his rank will be restored when his active service and time on the retired list totals 30 years.  But, such action would only be possible if the Personnel Council had determined he had served satisfactorily in the higher grade.  The record clearly shows that they did not make such a determination and the applicant has provided no evidence that would lead us to believe this determination was improper.  Accordingly, in view of the above and absent 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 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 12 December 2002, under the provisions of AFI 36-2603:

	            Panel Chair
	            Member
	            Member

The following documentary evidence was considered: 

   Exhibit A.  DD Form 149, dated 18 May 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 6 Aug 02.
   Exhibit D.  Letter, HQ AFPC/DPPRRP, dated 23 Aug 02, w/atchs.
   Exhibit E.  Letter, SAF/MRBR, dated 30 Aug 02.
   Exhibit F.  Letter from Applicant, undated, w/atchs.

                                   
                                   Panel Chair