RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-02368
		INDEX CODES:  100.05, 110.03,
					  112.10, 131.09

		COUNSEL:  NONE

		HEARING DESIRED:  NO

TMCD:  30 May 08

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APPLICANT REQUESTS THAT:

His records be corrected, to include reinstatement of his rank of senior airman, to allow him to reenlist in the Air Force.

He be returned to his previous career field or given the opportunity to retrain into another career field.

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APPLICANT CONTENDS THAT:

He was convicted by general court-martial in Aug 05 of wrongful use of Percocet.  After he was sentenced, he applied for and was accepted into the Return to Duty Program (RTDP).  While he does not believe an injustice occurred during the court-martial, he does believe it would be an injustice if he is unable to reenlist in the Air Force to continue to prove that he is a valued member.

In support of his appeal, the applicant provided his expanded statement and supportive statements.

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

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STATEMENT OF FACTS:

Applicant’s available military personnel records indicate he enlisted in the Regular Air Force on 24 Jul 01 in the grade of airman basic.

On 5 Aug 05, he was convicted by general court-martial of wrongful use of Percocet on or about 13 May 02 and on or about 31 Dec 02.  He was sentenced to a bad conduct discharge (BCD), reduction from the grade of senior airman (E-4) to the grade of airman basic (E-1), and restriction to the limits of Pope Air Force Base (AFB) for 30 days, but only so much of the sentence as provided for a BCD and reduction to the grade of airman basic (E‑1) was approved.

On 2 Sep 06, the portion of the sentence providing for a BCD was suspended by action of the Air Force Clemency and Parole Board until 20 July 07 at which time it was remitted without further action.

Information extracted from the Personnel Data System (PDS) indicates the applicant is currently serving on active duty in the grade of airman basic, with a date of rank of 19 Aug 05.  His Total Active Federal Military Service Date (TAFMSD) is 26 Nov 01.  He has a date of separation (DOS) of 23 Nov 07.

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AIR FORCE EVALUATION:

AFPC/DPPAE recommends denial noting the RTDP allows selected court-martialed enlisted personnel with exceptional potential the opportunity to return to active duty and have their punitive discharge, if adjudged, remitted.  Candidates who are returned to duty will have the unexecuted part of any sentence suspended for up to one (1) year, or as determined by the Air Force Clemency and Parole Board.  The suspended punishment, unless the suspension is sooner vacated, will be remitted at the end of the suspension period or upon the order of the Air Force Clemency and Parole Board.  These members will serve at least one year or until their expiration term of service (ETS), whichever is longer. 

AFPC/DPPAE indicated that although the applicant has been placed back on active duty under the RDTP, existing personnel policies and the structure of the RTDP are not compatible for continued retention.  Several factors clearly restrict the applicant from continued service.  These include the current RE code of 4F (Five or more days lost time during current enlistment); and that as a four-year enlistee, the applicant does not hold the rank of airman first class (A1C) with 12 months time in grade.  There is no evidence of error as his ineligibility to reenlist is established by governing instruction.  With respect to injustice, the applicant's punitive discharge may be remitted in exchange for his successful participation in the RTDP.  As such, it is AFPC/DPPAE’s opinion that evidence of an injustice is not presented by this appeal.

A complete copy of the AFPC/DPPAE evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation, with attachments, was forwarded to applicant on 21 Sep 07 for review and response within 30 days.  As of this date, no response has been received by this office (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.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  After a thorough review of the available evidence, we are persuaded that corrective action is warranted in this case.  We note that after his conviction by court-martial, the applicant was accepted into the RTDP, which is a highly selective rehabilitation program.  It allows court-martialed enlisted personnel with exceptional potential the opportunity to return to duty and have their punitive discharges remitted.  It is an intense and rigorous program designed to bring about a positive change in the attitudes and conduct of the participants and make them productive members of the Air Force.  We also are aware that entry into the program itself does not guarantee success and not every individual that enters and completes the program is returned to duty.  The applicant successfully completed the RTDP and was returned to duty.  However, it appears he has since separated from the Air Force at the expiration of his current term of service.  All the evidence available before us indicates he had embraced the high standards of the Air Force, performed his duty in an outstanding manner, desired to continue his military career, and had the support of others in that endeavor.  Therefore, we are of the opinion the applicant should be afforded relief that would allow him to again serve in the Air Force.  Because of the seriousness of the offense committed by the applicant, we are not inclined to reinstate his rank of senior airman.  However, based on clemency, we believe the applicant should be promoted to the grade of airman first class with a date of rank (DOR) six months from the date of his completion of the RTDP.  The applicant’s request that he be returned to his previous career field or he be given an opportunity to retrain into another career was noted.  We believe, however, that he should be retrained into an Air Force Specialty Code (AFSC) based on the needs of the Air Force.  Accordingly, we recommend the applicant’s records be corrected to the extent set forth below.  In our view, the recommended corrective action represents proper and fitting relief.

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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:

	a.  He was promoted to the grade of airman first class effective and with a date of rank of 1 Feb 07.

	b.  He was not discharged from active duty on 23 Nov 07, but continued to serve on active duty and was ordered permanent change of station (PCS) to his home of record or home of selection pending further orders.

	c.  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 was 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.

	d.  He was honorably discharged on 23 Nov 07 and reenlisted in the Regular Air Force on 24 Nov 07 for a period of four years.

	e.  He be retrained into an Air Force Specialty Code (AFSC) based on the needs of the Air Force.

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The following members of the Board considered AFBCMR Docket Number BC-2007-02368 in Executive Session on 27 Nov 07, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 19 Jul 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPAE, dated 7 Aug 07, w/atchs.
     Exhibit D.  Letter, SAF/MRBR, dated 21 Sep 07.