AIR FORCE BOARD FOR CORRECTION OF MILITARY-RECORDS &N
RECORD OF PROCEEDINGS
IN THE MATTER OF:
DOCKET NUMBER: 97-03252
COUNSEL: NONE
HEARING DESIRED: YES
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PIrIC&!JT REOUESTS THAT :
He be entered into the Return to Duty Program (RTDP).
CANT CONTENDS T W :
Due to circumstances beyond his control, his RTDP application was
not submitted in a timely manner.
The applicant states that he applied for entry into the RTDP;
however, his Area Defense Counsel (ADC) moved to a new
assignment, and his request was not forwarded to the appropriate
agency until after the required time-frame.
In support of the appeal, applicant submits a statement from the
ADC indicating that it was entirely her fault.
The applicant's complete submission is attached at Exhibit A .
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STATEMENT OF FACTS:
On 11 October 1995, the applicant enlisted in the Regular Air
Force for a period of 4 years.
On 1 June 1997, the applicant pled guilty to 5 specifications of
larceny. He was convicted by a military judge sitting as a
special court-martial and sentenced to a Bad Conduct Discharge
(BCD), 4 months confinement, forfeiture of $637 per month for 6
months, and reduction to the grade of airman basic.
On 21 July 1997, applicant's military defense attorney petitioned
for clemency requesting that either applicant be entered into the
RTDP or the BCD be suspended for a period of one year.
On 22 July 1997, the request for clemency was denied by the
convening authority, and the findings and sentence were approved.
The Associate Chief, Military Justice Division,. AFLSA/JAJM,
reviewed this application and states the military defense
attorney's failure to assist the applicant process his appeal in
a timely manner constitutes material error. Therefore, the Board
is within its authority to look at the substance of his request,
and, if appropriate, take whatever action it deems necessary to
place him into the RTDP. The question becomes whether placing
him into the RTDP is appropriate. According to the governing
regulation, RTDP offers selected court-martialed enlisted
personnel with exceptional potential the opportunity to be
returned to active duty and have their punitive discharges
remitted. Although they concede the case is a prime candidate
for review by the Board, they do not concede that applicant is a
prime candidate for the RTDP. In this respect, they note that he
committed numerous separate and distinct acts of larceny against
many victims, over several months. The crimes were not a result
of spontaneous poor judgment or easy opportunity, but rather were
pre-conceived and consciously executed. While they regeet that
applicant's RTDP request was mishandled, they believe it would be
a further mistake to grant his request without regard to normal
RTDP admission standards. Therefore, they strongly recommend his
case be presented to the RTDP Screening Board for further
evaluation before final action is taken.
A complete copy of the Air Force evaluation is attached at
Exhibit C.
A complete copy of the Air Force evaluation was forwarded to the
applicant on 9 February 1998, for review and response within 30
days. However, as of this date, no response has been received by
this office.
The applicant has exhausted all remedies provided by existing
1.
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. We note
that Return to Duty Program (RTDP) offers selected court-
martialed enlisted personnel with exceptional potential the
opportunity to be returned to active duty and have their punitive
discharges remitted.
The applicant submitted a request for
participation in the RTDP as part of his clemency package to the
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convening authority, but the request was denied. According to
AFI 31-205, prisoners who are denied entry into the RTDP by the
convening authority may apply to the Air Force -Clemency and
Parole Board within 30 days of convening
authority action.
However, the applicant‘s military defense attorney was reassigned
prior to the convening authority action and neglected to follow-
up on the applicant‘s appeal within 30 days. The Associate Chief,
Military Justice Division, has indicated the military defense
attorney’s failure to assist the applicant process his appeal in
a timely manner constitutes material error. In view of this, and
since through no fault of the applicant, he was denied an
opportunity to have his appeal of the convening authority action
considered by the Air Force Clemency and Parole Board, the
applicant’s request for entry in the RTDP was forwarded to the
Return to Duty Screening Board (RTDSB) . The RTDSB reviewed the
applicant’s appeal and indicated that they would have recommended
approval of his request for entry in the RTDP.
Prior to
rendering a recommendation on this application, a statement from
the applicant was obtained indicating his agreement to voluntary
return to a confinement facility and that completion” of the
program requirements does not guarantee his return to duty
(Exhibit F). Therefore, we recommend his records be corrected to
the extent indicated below.
BQBRD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that on 26 June 1998,
he requested entry in the Return to Duty Program and his request
was approved by competent authority.
The following members of the Board considered this application in
Executive Session on 26 June 1998 and 16 December 1998, under the
provisions of AFI 36-2603:
Mrs. Barbara A. Westgate, Panel Chair
Ms. Rita S. Looney, Member
Ms. Dorothy P. Loeb, Member
Mr. Phillip E. Horton, Examiner (without vote)
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 18 Sep 97, w/atchs.
Exhibit B. Applicant’s Master Personnel Records.
Exhibit C. Letter, AFLSA/JAJM, dated 27 Jan’98.
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Exhibit D.
Exhibit E.
Exhibit F.
Letter, AFBCMR, dated 9 Feb 98.
Letter, AFSFC Det 3/CC, dated 24 Jun 98, w/atch.
Letter, Applicant, dated 15 Dec 98. -
BARBARA A. WESTGAT
Panel Chair
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DEPARTMENT OF THE AIR FORCE
0
d
WASHINGTON, D. C.
Office of the Assistant Secretary
AFBCMR 97-03252
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:
rds of the Department of the Air Force relating to-
ected to show that on 26 June 1998, he requested entry in the
quest was approved by competent authority.
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