RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02003
		INDEX CODE:  131.04, 131.05
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His date of rank (DOR) to airman (E-2) be changed to reflect 23 Oct 01 and his DOR to airman first class (E-3) be changed to reflect 23 Aug 02.  

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APPLICANT CONTENDS THAT:

The regulation governing the Return-to-Duty Program (RTDP) only mentions a suspension to any unexecuted part of sentence.  He was unjustly put on probation and not allowed promotion to the rank of E-2 and E-3 at the normal intervals.  He provided a statement submitted by his current commander in which he contends that the applicant's former commander erroneously chose to withhold his promotions because of a letter he received indicating he could not test or be promoted.  

In support of his request, applicant provided his commander's statement and an extract of AFI 31-205, The Air Force Corrections System.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant was found guilty by general court-martial of two specifications of stealing property from the government and sentenced to confinement for 12 months, a bad conduct discharge, reduction to the grade of airman basic, forfeiture of all pay and allowances, and a fine of $7,200.  On 25 Aug 00, he entered the RTDP and graduated on 13 Mar 01.  On 23 Apr 01, the Air Force Clemency and Parole Board approved his return to duty and on 23 Apr 02 that part of his sentence directing bad conduct discharge was remitted.

On 27 Aug 02, the applicant's request that he be reinstated to the grade of staff sergeant was considered and partially granted by the Board.  The Board agreed with the suggested alternative presented by the Air Force and granted a high-year-of-tenure (HYT) waiver changing his HYT from November 2002 to December 2005, thus allowing him the opportunity to earn back the grades he lost.  In a reconsideration of his request, by a majority vote the Board promoted the applicant from the grade of airman first class (E-2) to the grade of senior airman (E-4) effective 1 Sep 02.  He has been subsequently selected for and promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 1 Jun 04.

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AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial.  DPPPWB states in accordance with AFI 36-2502, Airman Promotion Program, table 1.1, rule 4, he was ineligible for promotion due to the suspended punishment imposed by the court-martial.  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.  The DPPPWB evaluation is at Exhibit C. 

AFPC/JA recommends denial.  JA states his current commander is correct that AFI 35-205 does not prohibit Airmen from promotion consideration when they are returned to duty after completing the RTDP.  However, AFI 31-205 acknowledges that candidates who are returned to duty will have the unexecuted part of any sentence suspended for up to 1 year, or as determined by the AFC&PB.  The suspended punishment, unless sooner vacated, will be remitted at the end of the suspension period.  The applicant's commander overlooked that the applicant was facing the suspended BCD when he was returned to duty.  AFI 36-2502, makes Airmen ineligible for promotion who have "been convicted by court-martial, or [are] undergoing punishment/suspended punishment imposed by court-martial."  Consequently, he would have been ineligible for promotion until his suspended BCD was remitted in February 2002 by order of the AFC&PB. The applicant was properly denied promotion when he was returned to active duty because he was facing a suspended BCD, not because he was on "probation."  The AFBCMR previously granted him relief on two occasions.  Both of these orders put him in the position where he was able to ultimately achieve promotion to staff sergeant-the rank he held before he was convicted.  The JA evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

His return to duty and suspended punishment was not imposed by court-martial, but ordered by the AFC&PB.  JA states that he was properly denied promotion and not on probation.  He provided a letter initiated by his first sergeant that states otherwise.  When he questioned the guidance that led to the promotion withhold action he was told he was on probation for one year because of the RTDP.  AFI 31-205 does not even mention the word "probation" when it comes to the RTDP.  This interpretation led to what applicant believes is a false letter prepared by the first sergeant and signed by the commander.  His complete response, with attachment, 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 Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of 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 AFBCMR Docket Number BC-2004-02003 in Executive Session on 9 Dec 04, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPWB, dated 12 Jul 04.
    Exhibit D.  Letter, AFPC/JA, dated 12 Aug 04.
    Exhibit E.  Letter, SAF/MRBR, dated 20 Aug 04.
    Exhibit F.  Letter, Applicant, dated 20 Oct 04.