RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER: BC-2012-05437
				COUNSEL:  NONE
   				HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be promoted from the grade of airman basic (E-1) to senior airman (E-4).

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APPLICANT CONTENDS THAT:

He will be separated under the High Year Tenure (HYT) program unless he is promoted to the grade of senior airman based upon his completion of the Return to Duty Program (RTDP) and the one year probationary period.  Without the promotion he will be discharged which makes little use of the RTDP.

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 10 May 2011, the applicant was convicted by Special Court- Martial of wrongful use of a controlled substance and was sentenced to reduction to the grade of E-1                                        and a Bad Conduct Discharge (BCD).  On 17 November 2011, the Air Force Clemency and Parole Board approved the applicant for the RTDP and suspended the execution of the BCD until 16 November 2012, which has since been remitted.  

The applicant’s date of rank to the grade of airman (E-2) is 17 November 2012.  

Documents pertaining to court martial and RTDP are at Exhibit B. 

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AIR FORCE EVALUATION:

HQ AFPC/DPSOE recommends denial.  DPSOE states that there are no provisions which allow for restoration of rank based on a criminal conviction or completion of the RTDP.  

Criteria for promotion through senior airman (E-4) include completion of time-in-grade, completion of time-in-service and commander’s recommendation.  Based on this established criteria, the applicant’s projected promotion date to the grade of senior airman will occur on 17 July 2014.  

The HYT for senior airman is 8 years and the applicant’s HYT is not until December 2016, which is 16 months after his projected promotion to the grade of senior airman.

The RTDP is the Secretarial implementation of 10 U.S.C. 953 (Remission or suspension of sentence; restoration to duty; reenlistment). The RTDP gives airmen the opportunity to be returned to active duty and have a punitive discharge, if adjudged, remitted; it does not provide for the restoration of rank. AFI 36-2502 governs eligibility for promotion. That instruction contains no provision enabling applicant to regain rank lost as a result of a criminal conviction. Completion of the RTDP does not even guarantee return to duty. All that is required is that airmen returned to duty be allowed to serve at least one year before separation.

While the applicant successfully completed the RTDP and provided several letters in support of his request, no error or injustice occurred in his case.  

The complete DPSOE evaluation is at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 11 January 2013 for review and comment within 30 days (Exhibit D).  As of this date, this office has not received a 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.  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 opinion and recommendation of the Air Force office of primary responsibility and adopt the rationale expressed 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.

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved.  Therefore, the request for a hearing is not favorably considered. 

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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-2012-05437 in Executive Session on 27 August 2013 under the provisions of AFI 36-2603:

	  Panel Chair
	  Member
	  Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 15 November 2012, w/atchs.
Exhibit B.  Applicant’s Military Personnel Records.
Exhibit C.  Letter, HQ AFPC/DPSOE, dated 10 December 2012.
Exhibit D.  Letter, SAF/MRBR, dated 11 January 2013.




					 												Panel Chair



 


 


 

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