RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02177 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His rank of senior airman (SrA) be reinstated, with a date of rank (DOR) of 2 April 2009. ________________________________________________________________ APPLICANT CONTENDS THAT: On 2 April 2009, he was demoted to the grade of airman first class (AlC) due to a special court-martial. Once he was sentenced and demoted, he served 50 days in the Bangor Naval Brig. He was granted early release from confinement and was sent to Lackland AFB, TX for entry into the Air Force Return-to- Duty Program (RTDP) based on the recommendation of the convening authority and his command leadership. AFI 31-205, The Air Force Correction System, states candidates may petition the Air Force Board for Correction of Military Records (AFBCMR) for some or all of the rank lost because of a court-martial sentence at the end of the candidate’s probation period. AFI 36-2502, Airman Promotion/Demotion Programs, states airman convicted by court-martial receiving a discharge as punishment that are approved for the RTDP will undergo suspended court-martial punishment, while serving a 12-month probationary period beginning the completion date of the RTDP. Since his court-martial did not result in a discharge, the 12-month probationary period does not apply in this case. Since his return to active duty, he resumed his duties as Unit Education and Training Manager, a position filled in the past by a technical sergeant. Even though his rank is no longer commensurate with the responsibility, he has stepped into the required role and fulfilled the trust of those he serves. He feels the progress he made in the past few months and the confidence he has earned from his leadership qualifies him for the opportunity to regain his lost rank. In 2008, he made a mistake but his professional life as an airman has never faltered and he has exceeded the expectations of his supervisors throughout his career. During his first enlistment, he received numerous awards/recognition. Toward the end of his enlistment in 2006, he could not get a Career Job Reservation (CJR) due to force shaping. He chose to retrain into the Unit Education and Training career field to remain in the Air Force and has performed his duties exceptionally well. In 2007, he was promoted to staff sergeant. Outside of his personal life, he was a model noncommissioned officer (NCO). The personal problems he had are now behind him. Since the investigation, he has pushed past the issues and continues to use the surrounding support network. Being reduced in rank by two grades has had a significant impact on his family. He has a wonderful wife and three children. His middle child was diagnosed with Autism, which requires numerous therapies and special education needs. Getting some or all of his rank back would truly be a blessing. In support of his request, the applicant provides a personal letter, copies of character reference letters, his AF Forms 910, Enlisted Performance Reports; a listing of his accomplishments and awards. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 19 March 2009, the applicant was found guilty, by a special court-martial for wrongfully using oxycondone, a schedule II controlled substance, in violation of Article 112a, Uniform Code of Military Justice (UMCJ). He pled guilty to the offense and was sentenced to confinement for 105 days, reduction in rank from staff sergeant to airman first class (E-3) and a reprimand. On 7 May 2009, the convening authority approved the final action, but deferred the confinement to 21 days to allow the applicant to complete his in-patient drug rehabilitation program. On 5 June 2009, the Clemency and Parole (C&P) Board approved the applicant’s request for entry into the RTDP. The applicant successfully completed and graduated from the RTDP on 20 October 2009. He was reinstated onto active duty and is presently serving in the grade of airman first class, with a DOR of 19 Jan 10. His current date of separation is 24 Aug 13. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states a review of the record of trail confirms no error in the court-martial; likewise, the applicant’s success in the RTDP indicates no error in that program. The necessary implication from the applicant’s request is that he is alleging injustice in his current situation. The applicant successfully came back from the offense that led to his court-martial. He completed the RTDP and has been reinstated to active duty, avoiding an involuntary administrative discharge for drug abuse. AFI 31-205 states a person’s whole record, not just the crime, is reviewed for entry into the RDTP. After acceptance, the member must stay as long as necessary to determine whether he or she should be returned to duty or discharged. This time period is sometimes past the individual’s minimum release date from confinement. Members who are returned to duty will have the unexecuted part of any sentence suspended for up to one year, or as determined by the Air Force Corrections and Parole Board. The member must serve at least one year or until the expiration term of service (ETS), whichever, is longer. Members who successfully complete the RTDP are not entitled to be returned to the grade they held before the court-martial. JAJM states they do not believe returning the applicant to the rank of senior airman is justified under AFI 31-205. The complete AFLOA/JAJM evaluation is at Exhibit C. HQ AFPC/DPSOE recommends denial. DPSOE states JAJM has determined there are no legal errors requiring corrective action and has recommended the applicant’s request for restoration to the grade of SrA be denied. The complete HQ AFPC/DPSOE evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 15 October 2010, copies of the Air Force evaluations were forwarded to applicant for review and response. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ 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 an error or injustice to warrant changing his date of rank. 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. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-02177 in Executive Session on 9 March 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 22 Jun 10, w/atchs. Exhibit B. Letter, AFLOA/JAJM, dated 23 Aug 10. Exhibit C. Letter, AFPC/DPSOE, dated 3 Sep 10. Exhibit D. Letter, SAF/MRBR, dated 15 Oct 10.