RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2004-01781
	                            INDEX CODE 131.00, 105.01, 100.06
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His rank of senior airman (SRA) be restored so that he may continue his military career, having completed the Return to Duty Program (RTDP).

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APPLICANT CONTENDS THAT:

His current goals and ambitions are to do whatever he can to help the Air Force; he wants nothing more than to succeed at everything he does. The RTDP, coupled with his experiences at Offutt AFB during the last six months, has shown him that his improper conduct was detrimental to both the Air Force and himself in more ways than he thought possible. Based on what he has already accomplished since completing the program, he can only imagine where he would be today if, at the start of his career, he had the same drive and mental state he has now. With this second chance, he will epitomize Air Force core values for many years to come. His goals are hindered by his current rank of airman; therefore, he asks for reinstatement of his previous rank of SRA so he can continue to grow as an integral part of the Air Force.

The applicant provides supporting statements from the HQ Air Force Weather Agency (AFWA) commander, the squadron commander, the first sergeant, and supervisors who fully support his request for the grade of SRA and retention in the Air Force. The applicant’s complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

The RTDP offers selected court-martialed enlisted personnel with exceptional potential the opportunity to be returned to active duty and have their punitive discharge, if adjudged, remitted. The program does not provide for promotion or the restoration of rank. 

The applicant enlisted in the Regular Air Force on 19 May 99 in the grade of airman basic for a period of six years. He was assigned to the HQ Standard Systems Group at Maxwell AFB, AL, as a civil engineer computer programmer.  According to HQ AFPC/DPPPWB, he was promoted to the grade of airman first class (A1C) on 9 Jul 99.

His Enlisted Performance Report (EPR) for the period 19 May 99 through 15 Jan 01 had an overall rating of 5, the highest level, and all his performance factors were “firewalled.”

On 17 Oct 01, the 42 ABW commander appointed an investigating officer (IO) to examine allegations against the applicant pertaining to distribution/use/possession of drugs during a period of 1 Jul 00 - 28 Feb 01. 

[NOTE:  According to HQ AFPC/DPPPWB, the applicant was promoted to SRA on 9 Nov 01.  However, this promotion may have been “red-lined” pending the investigation because, other than the SRA promotion date in the personnel data system (PDS), there is no record of the promotion.  The documents pertaining to the applicant identify him as an A1C.  In a telephone conversation on 29 Nov 04, the applicant indicated his promotion was “red-lined” but “not officially” until his trial in Feb 02.]

On 30 Oct 01, the applicant waived his right to an Article 32 hearing.  However, on 5 Nov 01, the chief of military justice requested the IO reschedule the Article 32 hearing despite the waiver and the area defense counsel’s (ADC) objections.  The Article 32 hearing was conducted on 4 Dec 01.

The IO’s report (Exhibit B), dated 6 Dec 01, recommended referring a charge and specifications against the applicant for wrongful distribution, possession, and use of Ecstasy and wrongful use of marijuana.

Legal review on 26 Dec 01 by the Air University Staff Judge Advocate (AU/JA) found the evidence contained in the IO’s report warranted the charge and specifications.  The AU/JA recommended the charge and specifications be referred to general court-martial.  On 30 Dec 01, the case was referred to trial by general court-martial for violations of Article 112a (Controlled Substances) with the following specifications:

	Specification 1:  Wrongful distribution of some amount of Ecstasy on divers occasions between, on, or about 1 Jul 00 and on or about 28 Feb 01.

	Specification 2:  Wrongful use of marijuana on divers occasions between, on, or about 15 Jun 00 and on or about 1 Nov 00.

	Specification 3:  Wrongful possession of some amount of Ecstasy between, on, or about 20 Jan 01 and on or about 10 Feb 01.

	Specification 4:  Wrongful use of Ecstasy on or about 15 Jul 00.

On 19 Jan 02, after consulting counsel, the applicant offered a pretrial agreement to plead guilty to distribution of Ecstasy, but not to plead guilty to possession and use of Ecstasy or to use of marijuana, in exchange for a period of confinement no longer than four months.  However, his offer was disapproved on 23 Jan 02.

On 11 Feb 02, the applicant pled guilty to a single distribution of Ecstasy and wrongful possession of Ecstasy; pled not guilty to divers distribution of Ecstasy, wrongful use of Ecstasy, and divers use of marijuana.  The trial judge accepted the applicant’s guilty plea on the possession of Ecstasy specification, but the divers distribution of Ecstasy specification, the use of Ecstasy specification, and the use of marijuana specification were litigated before a panel of five officers.  

The primary evidence against the applicant consisted of testimony by three witnesses and his admission to possession and one-time distribution of Ecstasy.  On 12 Feb 02, the panel members found the applicant guilty of the following:

	-- Wrongful distribution of Ecstasy on or about 2 Feb 01.

	-- Wrongful use of marijuana on divers occasions between, on, or about 15 Jun and 1 Nov 00.

	-- Wrongful possession of Ecstasy between 20 Jan and 10 Feb 01.

	-- Wrongful use of Ecstasy on or about 15 Jul 00.

He was sentenced to reduction from A1C to airman basic, hard labor without confinement for 30 days, and a bad conduct discharge (BCD). The sentence was adjudged, but the BCD was suspended pending the appellate process.  Pursuant to the Air Force Clemency and Parole Board, on 8 Apr 03, the BCD was suspended until 7 Apr 04, at which time, unless sooner vacated, the discharge would be remitted. 

On 25 Jun and 9 Jul 02, AU/JA recommended the AU commander approve the findings and sentence as adjudged.  The applicant and his ADC submitted matters for clemency consideration, and requested the applicant be accepted into the RTDP.

The applicant was accepted into the RTDP in Aug 02. He successfully completed the program in Jan 03 and was returned to duty in the grade of airman basic by the Air Force Clemency and Parole Board in Apr 03. 

The applicant is currently assigned to the AFWA at Offutt AFB, NE, and serving in the grade of airman effective and with a date of rank (DOR) of 8 Apr 04, the day after the BCD was remitted.  

According to HQ AFPC/DPPPWB, if no ineligibility condition exists and his commander recommends him for promotion and reenlistment, which he has, the applicant will be eligible for promotion to A1C on 8 Feb 05 and SRA on 8 Jun 07.  He currently has a date of separation (DOS) of 18 May 05, unless his commander recommends him for reenlistment.  According to a 29 Jul 04 HQ AFPC/DPPPWB email to the AFBCMR Staff, the applicant’s current high year of tenure (HYT) date is 19 May 2011.

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AIR FORCE EVALUATION:

HQ AFPC/DPPPWB contends 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. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/JA advises by footnote that, according to the applicant’s records, he held the rank of A1C at the time of his court-martial. They presume, therefore, the applicant is seeking promotion, rather than reinstatement, of prior rank.  [See Note in Statement of Facts.]  As the applicant has failed to present relevant evidence of any error or injustice warranting relief, denial is recommended.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant on 9 Jul 04 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.	Sufficient relevant evidence has been presented to demonstrate the existence of injustice to warrant partial relief.  In reaching our decision, we do not by any means condone or minimize the seriousness of the applicant’s misconduct, which resulted in his court-martial and reduction in grade.  The applicant was found guilty of wrongful use of marijuana and wrongful possession of Ecstasy on several occasions.  He also was found guilty of wrongful distribution and use of Ecstasy.  However, the fact that the court did not impose confinement is noteworthy.  Instead, it was the applicant who voluntarily placed himself in the brig after he was approved to enter the rigorous RTDP.  According to HQ AFPC/DPPPWB, the applicant was originally promoted to SRA on 9 Nov 01 and, at the rate he is going, will not regain that grade until 8 Jun 07.  We find this an extraordinarily protracted process. The applicant takes responsibility for his misconduct and wants very much to continue in the service.  Further, he appears well on his way towards rehabilitation, as evidenced by his superiors’ strong supporting statements and desire to restore him.  Given the Air Force’s investment in this individual, and his real potential to be a leader and a mentor to new recruits, we must balance the full brunt of his punishment and total absolution against his misconduct and personal renewal.  We do not intend to whitewash the applicant’s misbehavior to the extent of reinstating his rank of SRA--he should earn this grade back.  Rather, we believe a more equitable and mutually beneficial remedy to the applicant and the Air Force would be to waive his reenlistment obstacles and accelerate his promotion to SRA by promoting him to A1C with a DOR of 19 Sep 04.  However, the effective date would be the date this Board convened.  In this way, should he maintain his present level of dedication and performance, the applicant has a realistic opportunity to continue his career.  Furthermore, the service can fully utilize his capabilities at a time when so many inexperienced troops need guidance and leadership.  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 APPLICANT, be corrected to show that he was promoted to the grade of airman first class, with a date of rank of 19 September 2004 and an effective date of 30 November 2004, that competent authority approved a waiver of the grade requirement and Career Job Reservation to obtain eligibility for reenlistment in the Regular Air Force, and that he is authorized to reenlist in the Regular Air Force for a period of four years at the expiration of his current term of service, as an exception to policy. 

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The following members of the Board considered this application in Executive Session on 30 November 2004 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-2004-01781 was considered:

   Exhibit A.  DD Form 149, dated 18 May 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPWB, dated 15 Jun 04.
   Exhibit D.  Letter, HQ AFPC/JA, dated 30 Jun 04.
   Exhibit E.  Letter, SAF/MRBR, dated 9 Jul 04.

AFBCMR BC-2004-01781

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 he was promoted to the grade of airman first class, with a date of rank of 19 September 2004 and an effective date of 30 November 2004, that competent authority approved a waiver of the grade requirement and Career Job Reservation to obtain eligibility for reenlistment in the Regular Air Force, and that he is authorized to reenlist in the Regular Air Force for a period of four years at the expiration of his current term of service, as an exception to policy.