RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

IN THE MATTER OF:		DOCKET NUMBER:  BC-2007-01665
		INDEX CODE:  130.00, 112.00
	XXXXXXX				COUNSEL:  NONE
						HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His high year of tenure (HYT) for master, senior and chief master sergeant (MSgt, SMSgt, CMSgt), be extended for two years.

2.  He receive full back pay for the time he was confined and on appellate leave after his court-martial that was subsequently overturned.

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APPLICANT CONTENDS THAT:

He missed promotion opportunities when he was wrongfully convicted and discharged from active duty.  He believes he should have two extra opportunities to be considered for promotion in future grades.  Before his conviction was overturned, he was ordered to jail for 5 months, received a bad conduct discharge (BCD) and was reduced in grade.  In addition, he did not receive full back pay and was given the "small difference" from what he earned to what he would have earned in the Air Force.  

In support of his request, the applicant submits a copy of his military trial/appeal records.  

The complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 8 June 1988.

On 8 January 1991 he was convicted by a General Court Martial and sentenced to a bad-conduct discharge (BCD), confinement for five months and reduced to E-1.  The specific reasons for these actions were the applicant went to the Exchange at Eglin AFB, Florida to purchase a stereo for his car.  He wanted an Audiovox AM/FM cassette player priced at $99.00 and found a box that purported to contain this item and took it to the checkout.  He paid $99.00 for the item and took it to his car.  Upon opening the box, he found it contained a higher priced Pioneer compact disc (CD) player.  He also discovered the box did not contain the correct wires to connect it in his car.  He did not return the Pioneer CD player, but did go back to the store to obtain the correct wires.  While selecting his purchase, the applicant saw a sales clerk mistakenly place an Audiovox CD player in a box for an Audiovox cassette tape player marked with a price of $139.00.  The next morning he returned to the store and purchased this item for the $139.00 marked on the box.  The correct price of the Audiovox CD player was $369.00.  As a result of these actions, he was charged with larceny and convicted.

After his conviction, the applicant appealed.

The ruling stated the government offered no evidence contrary to the applicant's version of the facts for either "theft."  There was no evidence offered that he switched prices on either item or placed the items in the incorrect box.  The appeal concluded that however morally reprehensible or unethical one may consider his conduct in taking advantage of the Exchange's mistake, his conduct was not criminal.  Therefore his charges were dismissed because the applicant's conduct was not larceny under any possible theory and it was determined that a rehearing on the charged larceny offenses was not feasible.  The court reversed and set aside his sentence.

On 2 April 1993, the Air Force Board for Correction of Military Records (AFBCMR) directed the applicant's record be corrected to reflect enlistment/promotion into the Regular Air Force in the grade of senior airman (SrA), with an effective date and date of rank (DOR) of 23 November 1990.  On 19 March 1996, the AFBCMR directed his records be corrected to show a waiver of his HYT of June 1998 for a period of nineteen months. 

He is currently serving on active duty in the grade of MSgt with a date of rank of 1 March 2007.  He is an Air Force recruiter stationed in Ohio.

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AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial.  DPPPWB states the applicant was returned to active duty in the grade of SrA with a DOR of 23 November 1990.  Based on this DOR, the applicant would have normally been considered for promotion to SSgt beginning with cycle 91A5.  However, since he received a reduction in rank and a bad conduct discharge, he was not considered for promotion to SSgt until cycle 94A5 (when his conviction was overturned).  DPPPWB states as it is policy and procedure for individuals supplementally considered for cycles missed for which they did not test, scores from the most current cycle (94A5) are used and applied back to previous cycles.  The applicant has been provided supplemental consideration for missed cycles, using policies and procedures afforded to others in similar situations, and was rendered a nonselect for all cycles.  DPPPWB defers to DPPAE regarding his request for extension of HYT.

The complete DPPPWB evaluation, with attachments, is at Exhibit B.

AFPC/DPPAE recommends denial.  DPPAE states it would be inappropriate for the AFBCMR to grant a two year HYT waiver for the applicant at this time.  As intended by the 2 April 1993 AFBCMR directive, the applicant should have been considered and had his records further corrected if he was eligible for further promotions.  The applicant currently has a HYT of 8 June 2014 and this should remain in effect unless the applicant is further promoted to the next higher grade under the enlisted promotion system.  DPPAE states there is no error or injustice noted and it would be inappropriate to grant HYT waivers to the next two higher grades.  

The complete DPPAE evaluation, with attachments, is at Exhibit C.

AFPC/JA recommends denial.  JA states an airman's entitlement to pay is based on statute.  With regard to "back pay" upon disapproval of certain court-martial sentences, federal statute entitles a member on appellate leave whose sentence is set aside to be paid for the period of leave charged as excess leave, unless a rehearing or new trial is ordered and a punitive discharge is included in the result of the rehearing and is executed.  Such a member shall be paid the amount of pay and allowances that he or she is deemed to have accrued, reduced by the total amount of his income from wages, salaries, tips, other personal service income, unemployment compensation, and public assistance benefits  from any government agency during the period he is deemed to have accrued pay and allowances.  The applicant purports he never received "full back pay" but acknowledged he was given the difference of military pay and his outside earnings.  He does not assert or provide any evidence to indicate the amount he received was erroneous or based on erroneous information.  By statute, a member, under the circumstances presented by the applicant would be entitled to "back pay" but it would be reduced by the total amount of his income.  Compliance with the referenced statute constitutes neither error nor injustice.  JA states no issue of error or injustice is presented by the applicant's petition.

A complete copy of the AFPC/JA 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 14 September 2007 for review and comment within 30 days.  As of this date, this office has received no response (Exhibit D).

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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.  In our view, the issues raised by the applicant were more than adequately addressed by the offices of primary responsibilities (OPR). Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt their rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof of the existence of either an error or injustice.

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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-2007-01665 in Executive Session on 3 January 2008, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 May 2007, w/atchs.
    Exhibit B.  Letter, AFPC/DPPPWB, dated 11 July 2007.
    Exhibit C.  Letter, AFPC/DPPAE, dated 14 June 2007, w/atchs.
    Exhibit D.  Letter, AFPC/JA, dated 31 August 2007.
    Exhibit E.  Letter, SAF/MRBR, dated 14 September 2007.