RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02855
		INDEX NUMBER:  110.00
	XXXXXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His Reenlistment Eligibility (RE) code of “4F,” “Five or more days of lost time during current enlistment” be changed to one that will allow his reentry into the Air Force.

He be granted a pardon for the offenses for which he was court-martialed.

If the Board cannot pardon him or chooses not to do so, he requests that his FBI record be corrected to reflect that he was only arrested once, not twice as his record reflects.

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APPLICANT CONTENDS THAT:

Applicant discusses the sequence of events that led to the “4F” RE code in his records.  He indicates that he was granted a waiver by his commander allowing him to reenlist but decided to separate from service due to pursuit of his education.  When he later attempted to join the Air National Guard, he discovered that his records still reflected a “4F” RE code.  He discovered that even though he had been previously granted a waiver, his decision not to reenlist caused his code to revert back to “4F.”

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

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STATEMENT OF FACTS:

The applicant entered active duty on 13 Sep 93.  On 20 Dec 95, while in the grade of airman first class, he was tried by general court-martial for the offense of stealing military property, in violation of Article 121, UCMJ, and with conspiring to commit larceny in violation of Article 81, UCMJ.  Prior to trial, applicant entered into a pretrial agreement in which he pleaded guilty to the lesser-included offenses of wrongful appropriation and conspiracy to commit wrongful appropriation in exchange for a sentence cap of 14 months confinement.  The applicant was sentenced to a bad-conduct discharge, confinement for 5 months, forfeiture of all pay and allowances, and reduction to the grade of airman basic.  On 26 Feb 96, the court-martial convening authority approved the sentence as adjudged.  The United States Air Force Court of Military Review affirmed the conviction on    7 May 96 and the United States Court of Appeals for the Armed Forces denied applicant’s petition for review.

The applicant completed 5 months of confinement and was accepted into the Return to Duty Program.  He graduated from the program on 24 Sep 96.  At that time, his bad conduct discharge was suspended until 31 Oct 97, at which time the BCD would be remitted unless the suspension was sooner vacated.  The suspension was not vacated and the BCD was automatically remitted.  On 20 Mar 98, the AFBCMR corrected the applicant’s records to show that on 17 Mar 98 he executed a 36-month extension to his 13 Sep 93 enlistment.  This allowed the applicant to remain on active duty until 14 Jun 01.  On 6 Oct 00, the applicant requested a waiver of his “4F” RE code to allow him to reenlist in the Air Force.  His commander approved his request.  However, the applicant never executed the reenlistment and separated from service on 14 Jun 01 with a “4F” RE code.  The applicant had a total of 275 days lost time during the period of his active duty service.

A resume of the applicant’s enlisted performance reports (EPRs) follows:

	Closeout Date				Overall Rating
	
  12 May 95					  5
  03 Apr 97					  5
  03 Apr 98					  5
  03 Apr 99					  5
  03 Apr 00					  5
  03 Apr 01					  4

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AIR FORCE EVALUATIONS:

AFLSA/JAJM states that the AFBCMR is without authority to reverse, set aside, or otherwise expunge the applicant’s court martial conviction.  The applicant’s bad conduct discharge was automatically remitted as of 1 Nov 97 and never executed.  Regarding his request for a pardon, the applicant should be advised of the application process for a Presidential pardon under the provisions of Title 28, Code of Federal Regulations, Section 1.1.  

As to the applicant’s request for correction of his FBI arrest record, they advise that the AFOSI can take action to correct any discrepancies.  The applicant’s record should reflect that he was charged with larceny and conspiracy to commit larceny but pleaded to and was convicted of wrongful appropriation and conspiracy to wrongfully appropriate military property.

The complete evaluation is at Exhibit C.

AFPC/DPPAE recommends denial of the applicant’s request to change his RE code.  His code of “4F” was correct at the time.

The complete evaluation 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 9 Jan 04 for review and comment within 30 days.  To date, a response has not been received.

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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 regarding the applicant’s request to change his RE code.  We note that his current “4F” RE code is waiverable, provided he meets all other requirements for enlistment.  We do not find a sufficient basis to award the applicant a code in the “1” series, which would not require a waiver.  The applicant indicates that the Air National turned him down after they realized he had a “4F” RE code.  However, he does not indicate if he specifically requested a waiver of the code.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting this part of the application.

4.  In regard to the applicant’s request for a pardon or correction of his FBI arrest record, the Board agrees with AFLSA/JAJM’s view that the Board lacks authority to grant these requests.  We recommend that the applicant consider the channels indicated in AFLSA/JAJM’s advisory to resolve these issues.  

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RECOMMENDATION OF THE BOARD:

The applicant be notified that the evidence presented regarding his request to change his Reenlistment Eligibility code did not demonstrate the existence of material error or injustice; that this portion of 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.

The applicant be notified that the Board lacks the authority to consider his requests for a pardon and correction of his FBI arrest record.

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The following members of the Board considered Docket Number BC-2003-02855 in Executive Session on 10 March 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Aug 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 22 Oct 03.
    Exhibit D.  Memorandum, AFPC/DPPAE, dated 12 Dec 03.
    Exhibit E.  Letter, SAF/MRBR, dated 9 Jan 04.