DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office  of the Assistant Secretary 

AFBCMR 97-00392 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for Correction 

of Military Records and under the authority of Section 1552, Title 10, United States Code (70A 
Stat 116), it is directed that: 

ary records of the Department of the Air Force relating to 
be corrected to show that: 

a.  On 9 April 1996, his enlistment for four years, executed on 10 June 199 1 and 
extended for ten months on 8 May  1995, was extended through 30 January 1998, under the 
provisions of AFI 36-2606, Table 4.1, Rule 22. 

b.  He was not released from active duty on 3 1 January 1998 due to high year of tenure, 

but on that date, as an exception to policy, competent authority approved the extension of his 
10 June 1991 enlistment through 9 June 1999, and he continued on active duty and was ordered 
permanent change of station to his home of record (home of selection). 

c.  He be given the opportunity to test for promotion to the grade of staff sergeant for 

cycle 98E5. 

d.  On 3 1 January 1998, he applied for remission of any indebtedness that may have 

been incurred as a result of overpayment of refunded forfeitures and his application was 
approved by competent authority. 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 

9 7 - 0 0 3 9 2  

COUNSEL:  None 
HEARING DESIRED: NO 

i 

FEB 0 5  1993 

.
APPLICANT REOUESTS THAT: 

.

 

1.  He be allowed to reenlist retroactively to 9  April 1996 when 
his pay stopped, and that his family receive the pay allotted to 
them while he  was  in confinement, L e .  ,  $1,000.00 per month of 
waived  forfeitures pursuant  to  the  order  approving  his  court- 
martial  (CM) conviction. 

2 .   His  high  year  tenure  (HYT) date  of  separation  (DOS)  be 
extended so that he can be eligible to test for staff sergeant. 

APPLICANT CONTENDS THAT: 

The reasons the applicant believes the records to be in error or 
unjust and the evidence submitted in support of the appeal are at 
Exhibit A. 

STATEMENT OF FACTS: 

As  a  result  of  his  reduction from  staff  sergeant  to  a  senior 
airman, and  upon  his  completion of  the  Return  to Duty-'Program 
(RTDP), he was honorably released from active duty due to HYT  on 
31 January 1998 and transferred to the Reserves. He was %issued  a 
separation program designator code of  IILCC1t ( R e d u c t i o n   i n   force 
w i t h   s e p a r a t i o n   p a y )  , and a reenlistment eligibility code of  ''4D" 
(SRA/Sgt  w i t h   a t   l e a s t   9 ,   b u t   less  than  1 6 ,   y e a r s   of  t o t a l   A i r  
Force m i l i t a r y   service  and  not  selected  for S S g t )  . 
The  remaining  relevant  facts  pertaining  to  this  application, 
extracted from the applicant's military records, are contained in 
the letters prepared by the appropriate office of the Air Force. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this 
Record of Proceedings. 

AIR FORCE EVALUATION: 

The  Office  of  Personnel  Program  Management,  HQ  AFPC/DPPAES 
reviewed this appeal and states that applicant should have been 
extended from 9 April 1996 to 30 January 1998. DPPAES recommends 
the applicant be extended for this period so that he would have 
status and be allowed to remain on active duty until l+ January 
1998 when his Bad Conduct Discharge (BCD) will be remitted. 
A complete copy of the Air Force evaluation is at Exhibit C .  
The Staff Judge Advocate, HQ  AFPC/JA also reviewed the case and 
provides a chronology of  events pertinent to this appeal. The JA 
contends  the  applicant  should  have  been  involuntarily extended 
beginning 9 April 1996, when he reached the DOS of his extended 
term of  enlistment, until the resolution of his criminal trial. 
This  was  not  done.  Under  the  statutory  rules  governing  CM 
sentences that were in effect at the time of his trial, applicant 
would  have  automatically been  reduced  to  the  grade of  E-3  and 
would  have  begun  forfeiture  of  all  his  pay  and  allowances  on 
7 June  1996. On  11  July  1996,  CM  Order  No. 
directed  that 
$1000.00 pay per month  of  the required forfeiture of  total pay 
and allowances was to be waived  for the duration of applicant's 
confinement and was to be paid to benefit his wife. The CM order 
reinstated the applicant to pay status, at  least as to  $ 1 0 0 0 . 0 0  
per month of his pay during confinement, with an effective date 
of rank  (DOR) as an E - 4   of 11 July 1996. His DOS should have been 
extended to his maximum release date  (MRD) of  9 October 1996 t o  
effectuate  this  reinstatement. The  convening  authority did  not 
approve retroactive pay or grade; therefore, total forfeiture and 
reduction to E - 3   is appropriate from 7 June to 11 July 1996.  On 
9  October  1996, the  applicant  enrolled  in  the  Return  to  Duty 
Program  (RTDP) and the statutory automatic forfeiture provisions 
ended.  Thus,  he  was  once  again  entitled  to  full  pay  and 
appropriate  allowances.  It  was  an  error  not  to  offer  him  the 
opportunity to voluntarily extend his enlistment to complete the 
RTDP. 
Since  applicant  was  ineligible  for  promotion rwhile a 
prisoner  and  is  currently  ineligible  for  promotion  until  the 
suspended BCD  has been  remitted, his  HYT  date will  be'30  days 
after completion of the suspended CM punishment. AFPC/JA believes 
that strict application of HYT to this applicant would create an 
injustice.  The  author  recommends  that  the  Board  deny  the 
applicant's request  f o r   retroactive  reenlistment.  Instead,  he 
should  be  extended  beginning  10  April  1996  and  ending  on 
30 January 1998, compensated as discussed in the advisory opinion 
(with no pay for the period 7 June to 11 July 1996) ,  and allowed 
to extend for one promotion cycle beyond his projected HYT date. 
A complete copy of the Air Force evaluation, with aetachments, is 
at Exhibit D. 

The  Chief,  Inquiries/AFBCMR  Section,  HQ  AFPC/DPPPWB,  also 
reviewed  the  application  and  advised  that  the  next  promotion 
cycle to staff sergeant following completion of the suspended BCD 

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I 

on  17  January  1998  is  cycle  9835.  To  be  eligible  for 
consideration  for  this  cycle,  applicant  must  have  a  DOS  of 
1 September 1998 or later. If the DOS  is extended,' the discharge 
has been remitted, he is recommended by the commander, and there 
are  no  other  disqualifying  factors, he  would  be  eligible  for 
consideration. The Chief defers to the decision of the Board. 
A complete copy of the Air Force evaluation, with attachments, is 
at Exhibit E .  
The  Chie'f ,  Claims  Branch,  DFAS-DE/FYCC,  advised  that  the 
applicant  entered  a  no-pay  status on  1 0   October  1996 when his 
He  was  restored  to  a  full-duty  status 
enlistment  expired. 
effective 1 December 1996. His pay record was adjusted in April 
1997 retroactive to 2  December 1996. He has  received all money 
due from the date of  confinement, 23 May 1996, through when his 
enlistment  expired, 9 October  1996. He also received all money 
due  from  the  date  he  was  restored  to  active  duty,  2 ,December 
1996, through present. He received no pay and allowances for the 
period 10 October through 1 December 1996. 
A complete copy of the Air Force evaluation is at Exhibit F. 

d 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

The  applicant  reviewed  the  Air  Force  evaluations  and  requests 
that he be allowed to extend his DOS  for one year so that he can 
test once more. 
Applicant's  complete  response,  with  attachment  (EPR) ,  is  at 
Exhibit H. 

3 

ADDITIONAL AIR FORCE  EVALUATIONS: 
In  E x e c u t i v e   Session  on  2  December  1997,  q u e s t i o n s   r e g a r d i n g   the 
a c c u r a c y   of a p p l i c a n t ' s   p a y   s t a t u s   a s   d i s c u s s e d   i n   the  HQ  AFPC/JA 
a d v i s o r y   (Ex. D )   prompted  the  Board  t o   d e f e r   r e n d e r i n g   a  f i n a l  
decision  on  t h i s   a p p e a l .   I t  was  d e t e r m i n e d   t h a t   f u r t h e r   l e g a l   and 
p a y r o l l   review  was  n e c e s s a r y   t o   c l a r i f y   a p p l i c a n t ' s   s t a t u s   and 
As  a  r e s u l t ,   the  f o l l o w i n g   a d d i t i o n a l   a d v i s o r y  
entitlements. 
o p i n i o n s   w e r e   o b t a i n e d :  
The  Chief,  Military  Justice  Division, AFLSA/JAJM,  provided  an 
additional  advisory,  which  differs  somewhat  from  the 
recommendation of HQ AFPC/JA. The applicant requests reenlistment 
retroactively  to  the  end  of  his  last  enlistment  (9 Apr  96) , 
payment  to  his  wife  of  $1000  per  month  during  his  six months' 
confinement, and  that his DOS  be  extended  so he  could test  for 
staff  sergeant.  The  Chief  agrees  the  applicant's  enlistment, 
which  expired  9  April  1996,  should  have  been  extended  until 
completion of the CM action, L e . ,  9 June 1996. On that date, his 

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97-00392 

enlistment should have expired and, because he was in confinement 
at  the  time, he  was  ineligible to  reenlist.  If  in  confinement 
serving a CM sentence when enlistment expires, a member's pay and 
allowances will end on the date the enlistment expires unless the 
sentence is completely overturned or set aside. The Chief states, 
in contrast to the AFPC/JA advisory, that the convening authority 
had  no  authority  to  reinstate  applicant  to  a  pay  status when 
acting  on  a  CM  sentence  nor  to  extend  the  applicant's 
reenlistment beyond 9 June 1996. The family should be paid a t   the 
rate  of  $1,000 pay  per  month  from  the  date  applicant  entered 
confinement  [ 2 3   May  961  until  9  June  1996, but  not  for  the 
remainder of his confinement. 

A copy of the complete additional evaluation is at Exhibit I- ~. 
The  Chief,  Claims  Branch,  DFAS-DE/FYCC,  provided  additional 
comments, indicating what  applicant was/was  not paid during the 
the  AFBCMR 
period  in  question.  [ T h e   C h i e f  
S t a f f   t h a t   the  a p p l i c a n t   u l t i m a t e l y   received  back  pay/allowances 
i n c l u d i n g   the  money  t h a t   would  have  been  sent  t o   h i s  
due  h i m ,  
w i f e .   Also,  i t   i s   DFAS' 
i n f o r m a l   o p i n i o n   t h a t   the  a p p l i c a n t   i s  
a c t u a l l y   i n d e b t e d   a s   the  r e s u l t   of  a  p o s s i b l e   over- refund  of 
a p p r o x i m a t e l y   $302.21.1 
A copy of the complete additional evaluation, with attachments, 
is at Exhibit J. 

i n f o r m a l l y   a d v i s e d  

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATIONS: 

Complete copies of  the additional evaluations were  forwarded to 
the applicant on 20 July  1998 for review and  comment within  30 
days. As  of  this  date, no  response  has  been  received  by  this 
office. 

I 

THE BOARD CONCLUDES THAT: 
1.  The applicant has exhausted all remedies provided by c existing 
law or regulations. 
2 .   The application was timely filed. 
3.  Sufficient  relevant  evidence  has  been  presented  to 
demonstrate  the  existence  of  probable  error  or  injustice  to 
warrant  granting partial  relief. After  thoroughly reviewing the 
evidence of record, the applicant I s submission, and the advisory 
opinions from DFAS-DE/FYCC, it appears he ultimately received all 
monies due him and that no further pay is necessary. We note the 
legal  advisory  opinions  assert  the  applicant's  10  June  1991 
reenlistment, which  had  been  extended  for  10  months  on  8  May 
1995, should have been further extended past the 9 April 1996 DOS 
until 9 June 1996, when his criminal trial was resolved. Further, 

4 

97-00392 

according  to  AFPC,  in  order  to  carry  him  in  the  appropriate 
active duty status to his DOS of 3 1  January 1998, he should have 
had his enlistment extended to include 1 7   January 1998  (when his 
suspended Bad Conduct Discharge was remitted) and 30 January 1998 
(the date  of  his  established HYT as  a  senior airman). We  were 
also  informally  advised  by  DFAS  that  the  applicant  may  have 
incurred a debt as a result of possible overpayment of !refunded 
forfeitures.  We believe that, in light of  his having completed 
the very difficult RTDP and attained an honorable discharge, any 
recoupment  action for a possible  debt  of  this nature  should be 
remitted  on  the  basis  of  clemency.  Additionally,  while  the 
applicant  requests  retroactive  reenlistment,  we  believe  his 
original enlistment should be extended for the maximum period of 
48  months  so  as  to  place  him  in  the  proper  status  under  the 
provisions of AFI  3 6 - 2 6 0 6 ,   Table 4.1, Rule 22, and to allow him 
time and eligibility to test  for promotion consideration to  the 
grade of  staff  sergeant for cycle  98E5.  If  he  is  selected  f o r  
promotion, he  may  then  seek  reenlistment  if  he  wishes .!and his 
commander  recommends  him.  Therefore,  we  conclude  his  records 
should be corrected as indicated below. 

THE BOARD RECOMMENDS THAT: 
The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that: 

a.  On 9 April 1996, his enlistment for four years, executed 
on 10 June  1991 and extended  for ten months on 8 May  1995, was 
extended through 30 January 1998, under the provisions of AFI 36- 
2606, Table 4.1, Rule 22. 

b.  He was not  released from active duty on 31 January 1998 
due to high year of tenure, but on that date, as an exception to 
policy, competent authority approved the extension of his 10 June 
1991 enlistment through 9 June 1999, and he continued ow active 
duty and was ordered permanent change of  station to his home of 
record  (home of selection). 

c.  He be given the opportunity to test for promotion to the 

grade of staff sergeant for cycle 9835. 

d.  On  3 1   January  1998,  he  applied  for  remission  of  any 
indebtedness  that  may  have  been  incurred  as  a  result  of 
overpayment  of  refunded  forfeitures  and  his  application  was 
approved by competent authority. 

The  case  was  originally  considered  in  Executive  Session  on 
2 December  1997, then again on 22 October 1998, and  finally on 
7 January 1999 by  the  following members of  the  Board  under  the 
provisions of AFI 36-2603: 

5 

97-00392 

Mr. Thomas S. Markiewicz, Panel Chairman 
Ms. Rita J. Maldonado, Member 
Ms. Peggy E. Gordon, Member 

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

i 

The 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 
Exhibit J. 
Exhibit K. 

DD Form 149,  dated 28  Jan 97,  w/atchs. 
Applicant's Master Personnel Records. 
Letter, HQ AFPC/DPPAES, dated 31 Mar 97. 
Letter, HQ AFPC/JA, dated 13 May 97,  w/atchs. 
Letter, HQ AFPC/DPPPWB, dated 1 9   May 97,  w/atchs. 
Letter, DFAS-DE/FYCC, dated 16 Jul 97. 
Letter, AFBCMR, dated 11 Aug 97. 
Letter, Applicant 1 0   N o v   97,  w/atch. 
Letter, AFLSA/JAJM, dated 11 Feb 9 8 .  
Letter, DFAS-DE/FYCC, dated 30 Jun 98,  w/a.tchs. 
Letter, AFBCMR, 20 Jul 9 8 .  

Panel Chairman 

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