RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00397
		INDEX CODE:  133.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His grade of airman first class (E-3) be reinstated, with his original date of rank (DOR) of 9 October 2000, and consideration for promotion to the grade of senior airman (E-4).
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APPLICANT CONTENDS THAT:

Since he successfully completed the Return to Duty Program (RTDP), he should be restored to his former grade.

In support of his request, the applicant submits a copy of his letter requesting early release from RTDP, copies of numerous letters of recommendation, AF Form 77 (Supplemental Evaluation Sheet) and a letter of appreciation.  The applicant’s complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System (MilPDS) reveals the applicant’s Total Active Federal Military Service Date (TAFMSD) as 16 August 1999.

The applicant is currently serving on active duty in the grade of airman (E-2), with an effective date and date of rank of 2 January 2004.  On 30 December 2003, the applicant placed a second request for an extension of his current enlistment (all extensions to his current enlistment total 19 months).  His request was approved on 9 March 2004, which changed his date of separation (DOS) of 2 January 2004 to 2 January 2005, with a reenlistment eligibility (RE) code of 4E.  RE code 4E is defined as “Grade is airman first class or below and airman completed 31 or more months, if a first-term airman; or, grade is airman first class or below and the airman is a second-term or career airman.”  The applicant has an established date of separation (DOS) of 2 January 2005.  His high year tenure (HYT) date is 16 August 2011.

On 21 March 2001, the applicant, while serving in the grade of airman first class (E-3), was tried by a special court-martial at Lackland AFB, TX.  He pled guilty to one specification of cocaine use and one specification of marijuana use.  On 21 March 2002, the applicant was sentenced to a bad conduct discharge, reduction to the grade of E-1, forfeiture of $600.00 pay per month for four months and confinement for 100 days.  His sentence was approved and, except for the bad conduct discharge, was executed.  The applicant requested consideration for RTDP and, on 26 April 2002, the convening authority approved the sentence and directed his entry into the program.  On 11 March 2003, the United States Air Force Court of Criminal Appeals found no error prejudicial to the substantial rights of the applicant and approved the findings and sentence.  The applicant’s petition for review by the Court of Appeals for the Armed Forces was denied on 16 July 2003.

On 3 January 2003, the Air Force Clemency and Parole Board approved applicant for return to duty effective as soon as possible.  Additionally, the execution of the bad conduct discharge (BCD) was suspended until 2 January 2004, at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted.  Special Court-Martial Order No. 9, dated 4 March 2004, reveals the BCD was remitted, effective 18 December 2003, by action of the Air Force Clemency and Parole Board.

Applicant's Enlisted Performance Report (EPR) profile for the last four reporting periods follows:

		Period Ending	Evaluation

		  8 Feb 01	5 - Immediate Promotion
		 29 Mar 02	2 - Not Recommended at this Time
		 18 Jun 03	5
		 18 Jun 04	5
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AIR FORCE EVALUATION:

AFLSA/JAJM states that the applicant is not contending a specific error has occurred which requires the correction of his court-martial record and there is no indication in the record of such an error.  The applicant successfully completed the RTDP.  From all indications, he has been successfully rehabilitated and performed well.  Thus, as the RTDP allows, his bad conduct discharge was suspended and ultimately remitted.  The RTDP does not provide for reinstatement of rank.  Based on his grade and time in service, the applicant will most likely not be eligible to reenlist when his enlistment expires in January 2005.  The applicant provides compelling rationale to grant some form of relief.  While applicant’s record has been meritorious since his completion of RTDP, action affecting his sentence is not appropriate.  Restoration to the grade held at the time of the court-martial, with original DOR, would provide a windfall in terms of back pay and seniority that is not warranted.  However, applicant’s continued superior performance, exceptional technical skill, leadership and “can do” attitude described in his submissions serves as a sufficient basis for his commander to conclude that it is in the best interest of the Air Force to allow the applicant the opportunity to progress beyond airman basic.  Accordingly, the Board should consider whether to grant the applicant relief as to either high year tenure or enlistment period.  The AFLSA/JAJM evaluation is at Exhibit C.

HQ AFPC/DPPPWB recommends the application be denied.  DPPPWB states that the RTDP provides airmen an opportunity to be returned to active duty and have a punitive discharge remitted; it does not provide for restoration of rank.  Based on the remittance of the BCD, the Military Personnel Data System (MilPDS) has been updated to reflect applicant’s grade as airman (E-2), with an effective date and date of rank (DOR) of 2 January 2004.  He will be eligible for promotion to airman first class (E-3) on 2 November 2004, provided no ineligibility conditions exist and he is recommended by his commander, and senior airman (E‑4) on 2 July 2006, provided he is recommended for reenlistment.  The HQ AFPC/DPPPWB evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on 25 June 2004 for review and response.  As of this date, no response has been received by this office (Exhibit E).
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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 demonstrate the existence of an injustice warranting corrective action.  Since the applicant was found guilty of the use of a controlled substance, we are not inclined to recommend corrective action that would result in his original DOR being restored.  We are aware that the Air Force Return to Duty Program (RTDP) is extremely competitive and relatively few members such as the applicant are approved for entry in the program.  The applicant successfully completed this program and was then selected by the Air Force Clemency and Parole Board to be returned to duty and his bad conduct discharge was ultimately remitted, effective 18 December 2003.  Since his return to duty, applicant has performed well as evidenced by the letters submitted in support of his appeal and his recent performance reports.  In view of his successful completion of RTDP, his outstanding duty performance, and the support of his superiors since returning to duty, we believe some form of relief is warranted.  In this respect, we are sufficiently persuaded that the applicant should be afforded appropriate promotion relief, which would result in his eligibility for promotion consideration to the grade of senior airman (E-4) prior to his established Date of Separation (DOS).  Therefore, in order to meet the time in grade (TIG) criteria of 20 months for promotion to the grade of E-4 prior to the applicant’s DOS of 2 January 2005, we believe proper and fitting relief would be to promote the applicant to the grade of airman first class (E-3) earlier than his established eligibility date of 2 November 2004.  Hence, subtracting 20 months from 2 January 2005 would be 2 May 2003.  However, by promoting the applicant on 2 April 2003, as an exception to policy, his commander would have 30 days before the applicant’s DOS to consider and select/nonselect him for promotion.  In view of the foregoing, we recommend the applicant’s records be corrected to the extent indicated below.
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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that, as an exception to policy, he was promoted to the grade of airman first class (E‑3), effective and with a date of rank of 2 April 2003.
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The following members of the Board considered this application in Executive Session on 11 August 2004, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2004-00397.

   Exhibit A.  DD Form 149, dated 26 Jan 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 12 Apr 04.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 10 Jun o4.
   Exhibit E.  Letter, SAF/MRBR, dated 25 Jun 04.

                                   Chair

AFBCMR BC-2004-00397

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 APPLICANT be corrected to show that, as an exception to policy, he was promoted to the grade of airman first class (E-3), effective and with a date of rank of 2 April 2003.

                                     	Director
                                     	Air Force Review Boards Agency