RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2003-01741
	           INDEX CODE 112.10  131.00  133.01
	 	COUNSEL:  None
	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

He be reinstated to the grade of staff sergeant (SSgt) so that he will be eligible for reenlistment.

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APPLICANT CONTENDS THAT:

He does not believe the record to be in error or unjust. He completed the Return To Duty Program (RTDP) and was allowed to remain on active duty. While in the RTDP, he wrote letters to victims of his crimes and expressed remorse. He had an overwhelming desire to changing his thinking and negative behavior. He committed himself wholeheartedly to the rehabilitation process and today he is a different man. Since returning to duty, he has taken advantage of every opportunity to give back by sharing his experiences with other young airmen in hopes they will not travel down the same path he took. His request comes as respectfully and humbly as he knows how. The Air Force does not owe him anything; however, he would like to take full advantage of this second chance and remain on active duty. With his current grade, he will not have that opportunity and he respectfully asks for reinstatement to the rank of SSgt. This will give him not only an opportunity to reenlist but also to test for promotion and earn technical sergeant (TSgt) or maybe even master sergeant before he ends his career. He submits numerous character letters from past and present commanders and supervisors that attest to his duty performance. He has learned from his past and today strives to be the best he can be at everything he does. He chose to stand and take responsibility for his actions and make amends to the victims of his crimes. He has done all he can to make things right and realizes it is a privilege and honor to once again serve this country. He vows never to bring discredit against it or his profession.

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

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STATEMENT OF FACTS:

The following information was extracted from the applicant’s military personnel records and court-martial records, which included the Article 32 Investigation and a Security Forces Report of Investigation (ROI).
 
The applicant enlisted in the Regular Air Force on 26 Jun 87 and was ultimately promoted to the grade of SSgt with a date of rank (DOR) of 1 May 94. He reenlisted for a period of six years on 2 May 94. He was subsequently promoted to TSgt in cycle 97E6 with a DOR of 1 Jul 98.

With two exceptions, all of his performance reports reflect the highest overall ratings of either “9” (old system) or “5” (new system). The applicant’s performance reports and numerous awards are provided at Exhibit B.

During the period in question, the applicant was a TSgt assigned to the XXXXXXXXXXXXXXXX at Wright-Patterson AFB, OH, as the chief of the commander’s support staff.    

In Jul 99, the applicant moved into a base housing unit that had been occupied by a subsequently retired TSgt. The applicant and his wife apparently separated in Aug 00 and were divorced on 12 Oct 00. 

Towards the end of Oct 00, the retired TSgt contacted Security Forces because he believed another person had used his MBNA America Bank credit card. Apparently when he had attempted to close out his MBNA account, he was advised he could not because he was delinquent in the amount of $7,500 from two credit card “access checks” made out to and cashed by an individual with the same name as the applicant’s. The retiree did not know the applicant. Investigation disclosed that in Feb 00 MBNA mailed a letter containing two credit card access checks to the retired TSgt at his old address (then occupied by the applicant), not knowing the retiree had moved. Someone other than the retired TSgt received the checks, activated them through the MBNA website or toll-free number, made them both out to the applicant for $5,500 and $2,000 with the retiree’s name forged on the front of each check, and then endorsed them both with the applicant’s name and cashed them at the Wright-Patterson Credit Union. The Ohio Attorney General’s Bureau of Criminal Identification and Investigation’s findings resulted in 100% positive identification that the applicant forged the retiree’s signature and wrote the faces and endorsements on both checks.  Interviews with the commander alluded to financial and family problems, while the ex-wife alleged that the applicant was financially irresponsible and had written fraudulent checks before. The Security Forces ROI was completed on 15 Feb 01.

However, in the course of the above investigation, the applicant’s misuse and failure to pay his Government Travel Card (GTC) came to light. The applicant took several cash advances from ATM machines from May 00 to Jul 01 at times when he was not on TDY. The applicant apparently was the primary Agency Program Coordinator for the GTC program. The Security Forces were contacted by the Wright-Patterson Credit Union when a personal check written by the applicant on 6 Oct 00 for $4,500 on his Red River Community Federal Credit Union bounced.

On 31 Jul 01, charges were preferred to the applicant for improper use of his GTC from on or about 25 Sep 00 to on or about 3 Apr 01; stealing money from the MBNA in the amount of $2,000 and $5,500; falsely, with intent to defraud, knowingly made and uttered the two checks in the amount of $2,000 and $5,500 which would, if genuine, apparently operate to the legal harm of another; wrongfully and with intent to defraud uttered a $4,500 check to himself upon the Red River Federal Community Credit Union knowing he had insufficient funds; failing to pay a debt of approximately $7,600 to Bank of America for charges on his GTC which became due and payable from on or about 1 Dec 00 to on or about 1 Apr 01; and stealing a letter addressed to the retired TSgt.

On 11 Aug 01, the applicant remarried.

On 5 Sep 01, an Article 32 investigating officer (IO) was appointed. On 27 Sep 01, the IO recommended that the charges of dereliction of duty, larceny, forgery, uttering bad checks, failure to pay a debt and mail theft be referred to a general court-martial. 

A general court-martial was convened at Wright-Patterson AFB, OH on 19 Nov 01 and the applicant pled and was found guilty of the following:

	1.  Derelict in his duty by failing to use his GTC for official travel purposes only from on or about 25 Sep 00 to on or about 3 Apr 01.

	2.  Stole money in the amount of $2,000 and $5,500, the property of MBNA America Bank.

	3.  With intent to defraud falsely made and uttered checks payable to himself in the amount of $2,000 and $5,000.

	4.  With intent to defraud wrongfully uttered a $4,500 check payable to himself to the Wright-Patterson Credit Union drawn upon the Red River Federal Community Credit Union with insufficient funds. 

	5.  Dishonorably failed to pay a debt of approximately $7,600 to Bank of America for charges on his GTC which became due and payable from on or about 1 Dec 00 to on or about 1 Apr 01, and stealing a letter addressed to the retired TSgt.

The applicant’s sentence was reduction to the grade of airman basic, confinement for 12 months, and a bad conduct discharge (BCD).

The Staff Judge Advocate (SJA) reviewed the case on 19 Dec 01 and noted that the maximum sentence that could have been imposed for the offenses was 31 years of confinement, reduction to the lowest enlisted grade, dishonorable discharge, forfeiture of all pay and allowances and a fine. Apparently there was a pretrial agreement wherein the convening authority had agreed to approve no confinement in excess of 15 months. The SJA noted the sentence imposed by the court was less severe than the sentence limitation in the pretrial agreement and recommended the convening approve the adjudged sentence. 

The applicant’s defense did not allege any legal error and on 28 Dec 01 submitted a petition for clemency to the convening authority. Counsel noted the applicant’s outstanding 14-year career preceding the conviction and argued the applicant was dealing with extreme mental and emotional stress in his family as he was confronted with a difficult divorce. Counsel asked for an early release from confinement so the applicant could repay the victims of his crimes as part of his rehabilitation. Counsel advised the applicant had to provide financial support to his three-year-old son and ex-wife as well as to his current wife and her three children. The applicant provided a statement blaming his uncharacteristic state of mind on his divorce proceedings and spiraling financial problems. He asked for early release so he could support his dependents and pay his debts. Numerous supporting statements were also submitted.

General Court-Martial Order No. 04, dated 3 Jan 02 approved and executed the sentence except for the BCD. Upon completion of confinement, the applicant would be required to take leave pending completion of appellate review of the conviction. The findings and sentence were affirmed on 17 May 02. 

On 3 Apr 02, the Air Force Clemency and Parole Board approved the applicant’s request to enter the RTDP.

On 15 Jul 02, the applicant petitioned the US Court of Appeals for the Armed Forces for a grant of review of the decision of the US Air Force Court of Criminal Appeals.  His petition was denied on 9 Sep 02.

On 6 Nov 02, the Air Force Clemency and Parole Board reviewed his case and approved his return to duty. Further, the execution of the BCD adjudged on 19 Nov 01 was suspended until 5 Nov 03, at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted.

General Court-Martial Order No. 74, dated 2 Jan 03, suspended the BCD until 5 Nov 03, at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted.

The applicant was approved for return to duty on 13 Jan 03.

On 9 Apr 03, the Air Force Clemency and Parole Board ordered that so much of the sentence as provided for a BCD was remitted effective 8 Apr 03.

The applicant is currently serving in the grade of airman with a DOR of 9 Apr 03. According to HQ AFPC/DPPAER, he extended his 2 May 94 enlistment twice for a total of 45 months, giving him a separation date of 2 Feb 04, when he reaches his high year of tenure (HYT) based on his current grade and DOR. The maximum period a member may extend is 48 months.

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AIR FORCE EVALUATION:

HQ AFPC/JA advises that RTDP participants must develop a personal rehabilitation plan while also attending individual and group counseling. A treatment team comprised of a social worker, a psychologist, a substance abuse/mental health technician, a military training leader, and a chaplain regularly evaluates RTDP participants. The RTDP does not provide for restoration of rank. AFI 36-2502 governs eligibility for promotion and contains no provision enabling the applicant to regain rank lost as a result of a criminal conviction. Indeed, completion of the RTDP does not even guarantee return to duty; it merely requires that airmen returned to duty be allowed to serve at least one year before separation. The applicant should not be restored to SSgt. He lost his rank as a result of a sentence of a court-martial. The RTDP was not created to eliminate all aspects of an airman’s court-martial; it was created to give deserving airmen an opportunity to be rehabilitated, discharged honorably and, if otherwise qualified, reenlisted. There is no evidence of an error or injustice in the applicant’s case. On the contrary, despite being convicted of numerous charges of fraud and the theft of thousands of dollars, the applicant was given the opportunity to remit a BCD and return to duty in order to finish out his current enlistment honorably. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPPWB advises that, based on the applicant’s current and DOR of 9 Apr 03 for airman, the earliest cycle he would be eligible for promotion consideration to SSgt would be 07E5. However, he currently has a mandatory date of separation (DOS) of 2 Feb 04 due to HYT. DPPPWB defers to HQ AFPC/JA’s recommendation.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant agrees there is no error or injustice and he is grateful for the second chance he has been given. He is asking for the opportunity to continue what he has been doing since he was 18 years old--serve his country. The Air Force does not owe him anything and he takes full responsibility for his crimes. However, he feels he still has a lot to offer the Air Force in terms of experience. His superiors have made him feel he matters and trust him to accomplish the mission. He promises to serve honorably if given the opportunity to continue his career.  

The applicant provides strong character statements from current and former supervisors, commanders and others supporting his continuance in the Air Force.

A complete copy of the applicant’s response, with attachments, is at Exhibit F.

The applicant’s former commander from 1997-1999 at Howard AFB provided a supporting statement requesting reinstatement of the applicant’s grade so he can pay back the Air Force’s considerable investment and make this a win-win situation.

The former commander’s letter is at Exhibit G.  

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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.	Sufficient relevant evidence has been presented to warrant partial relief in an exercise of clemency. The applicant requested that he be restored to the grade of SSgt so he is eligible to reenlist. In his current grade of airman, he reaches his HYT on 2 Feb 04 and must separate. However, if the applicant were reinstated to SSgt with his original DOR of 1 May 94, supplemental promotion consideration beginning with cycle 97E6 would automatically restore him to TSgt, since he was already promoted to that grade by that cycle. He would then become eligible for supplemental promotion consideration for MSgt beginning with cycle 00E7. Thus, granting his appeal would essentially remove the punishment of grade reduction imposed by court-martial for his misconduct. The applicant used his GTC for unofficial charges, uttered a false check, and failed to pay his debts. These were serious offenses in themselves, given that the applicant was apparently the primary Agency Program Coordinator for the GTC program and significant amounts of money were involved. He also uttered two false checks against the MBNA America Bank account of a retired TSgt. Consequently, we do not believe granting the stated request is appropriate. Notwithstanding the above, the applicant has completed the rigorous RTDP and appears well on his way towards rehabilitation, as evidenced by strong supporting statements. The applicant takes full responsibility for his misconduct and wants very much to continue in the service. We also note that, with two exceptions, all of his performance reports reflect the highest overall ratings. He is also the recipient of numerous awards. In this light, we must balance the full brunt of his punishment and total absolution against his misconduct and personal renewal. Therefore, after weighing the evidence presented, we believe a more equitable remedy would be to restore the applicant to the grade of senior airman (SRA) with a DOR of 9 Apr 03 (the day the Air Force Clemency and Parole Board ordered the BCD remitted), and waive the HYT restrictions to allow him to test for SSgt. We believe this gives the applicant a realistic opportunity to continue his career and/or attain retirement eligibility while being an asset to the Air Force. If they have not done so already, his rating chain will need to render a current Enlisted Performance Report (EPR) before the promotion eligibility cutoff date (PECD) of 31 Mar 04 if he is to be considered for SSgt by cycle 04E5, the earliest cycle for which he is eligible with his SRA DOR of 9 Apr 03. Therefore, we recommend the applicant’s records be corrected as indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT, be corrected to show that:

	a.  On 13 January 2003, competent authority approved his request for a waiver of his High Year of Tenure as an exception to policy until the first time he is eligible for promotion consideration to the grade of staff sergeant.

	b.  The applicant was promoted to the grade of senior airman effective and with a date of rank of 9 April 2003. 

It is also recommended that if the applicant has not attained a 5-Skill Level by 31 March 2004, the Promotion Eligibility Cutoff Date (PECD) for promotion cycle 04E5, the requirement be waived.

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The following members of the Board considered this application in Executive Session on 10 September 2003 under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence relating to AFBCMR Docket Number BC-2003-01741 was considered:

   Exhibit A.  DD Form 149, dated 15 May 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/JA, dated 5 Jun 03.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 20 Jun 03.
   Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.
   Exhibit F.  Letter, Applicant, undated, w/atchs.
   Exhibit G.  Letter, Former Commander, dated 1 Aug 03.

                                   Chair

AFBCMR BC-2003-01741

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to     , be corrected to show that:

	     a.  On 13 January 2003, competent authority approved his request for a waiver of his High Year of Tenure as an exception to policy until the first time he is eligible for promotion consideration to the grade of staff sergeant.

	     b.  The applicant was promoted to the grade of senior airman effective and with a date of rank of 9 April 2003. 

	It is also directed that if the applicant has not attained a 5-Skill Level by 31 March 2004, the Promotion Eligibility Cutoff Date (PECD) for promotion cycle 04E5, the requirement be, and hereby is, waived.

                                                                          Director
                                                                          Air Force Review Boards Agency