RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-01346
                 INDEX CODE:  126

                 COUNSEL:  NONE

                 HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His original date of rank in the grade of airman first class (E-3), of
30 September 1996, be restored.

He be promoted to the grade of senior airman (E-4) on 31 May 1998.

_________________________________________________________________

APPLICANT CONTENDS THAT:

There was a  miscommunication  and  an  administrative  mistake  which
caused errors and were not the intentions of the commander.

Applicant’s submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force  on  31  May  1995  for  a
period of four years.

On 2 May 1997, while serving in the grade of airman first  class,  the
applicant’s Squadron Commander imposed nonjudicial punishment (Article
15) on the applicant for failing to go to his appointed place of  duty
on 10 April 1997 in violation of Article 86 of  the  Uniform  Code  of
Military Justice (UCMJ).  The applicant’s punishment  consisted  of  a
reduction to the grade of airman (E-2) and forfeiture  of  $75.00  pay
per month for two months, 45 days restriction and 45 days extra  duty.
The reduction and forfeitures were suspended until 1 November 1997.

On  10  June  1997,  the  Squadron  Commander  vacated  the  suspended
nonjudicial punishment (reduction in grade and forfeitures)  when  the
applicant again failed to go to his appointed place of duty on 17  May
1997.  The applicant was also punished under Article 15 for  the  same
failure to go on 10 June 1997.  His punishment consisted  of  30  days
correctional custody.

Available records reflect that the applicant had a date of  separation
(DOS) of 30 May 1999.  The Assignment Processing SURF  indicates  that
the applicant received a reenlistment  code  (RE)  code  of  4E  which
reflects that he was ineligible for reenlistment:   “Grade  is  airman
first class or below and airman completed 31 or more months (55 months
for 6-year enlistees), if a first-term airman;  or,  grade  is  airman
first class or below  and  the  airman  is  a  second-term  or  career
airman.”

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate  Chief,  Military  Justice  Division,  Air  Force  Legal
Services Agency, AFLSA/JAJM, states that the applicant  is  requesting
that his original date of rank of 30  September  1996  be  reinstated.
This would allow the applicant to be promoted to senior airman  on  31
May 1998.  The applicant’s new date of rank of 2 May 1997  delays  the
time in which the applicant would be eligible to pin on senior airman.
 The applicant provided a letter from his Squadron Commander  and  his
flight leader.  The Squadron Commander recommends the applicant’s rank
be reinstated without back pay.  The Flight  Leader  states  that  the
intent behind the vacation action was to reinstate the rank after four
months if the applicant improved his performance.

The only way to reinstate the applicant’s stripe would have been a set
aside of the vacation proceeding.  The power to set aside a punishment
should ordinarily be exercised within  a  reasonable  time  after  the
punishment  has  been  executed.   It  appears   that   the   Squadron
Commander’s request to reinstate the applicant’s rank  was  past  four
months and no sufficient reason was provided  for  the  delay.   As  a
result, there is no authority to reinstate the applicant’s rank.

After a review of the available records,  this  office  is  unable  to
provide  administrative  relief  under  the  established   Air   Force
Instructions as well as the Manual for Courts-Martial.  There  are  no
legal errors requiring corrective action.

A complete copy of the Air Force evaluation is attached at Exhibit  C.


The Chief, Inquiries/AFBCMR Section,  Enlisted  Promotion  &  Military
Testing Branch, AFPC/DPPPWB, states that should the AFBCMR  set  aside
the reduction as requested by the applicant,  his  original  effective
date and date of rank to airman first class  was  30  September  1996.
Since pay and allowances are based on the effective date of  promotion
if the Article 15 is set aside and the applicant receives his original
date of rank and effective date, he would be entitled to back pay  and
allowances from that date.  In addition, his date of rank  for  senior
airman would  be  31 May  1998  provided  he  is  recommended  by  his
commander and is otherwise eligible.

A copy of the Air Force evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
3 August 1998 for review and response within  30  days.   As  of  this
date, no response has been received by this office.

_________________________________________________________________

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 probable error or  injustice  warranting  relief  as  the
applicant requests.  After reviewing the evidence of  record  and  the
statements from the applicant’s commander and the  flight  leader,  we
believe that the applicant’s date of rank to airman first class should
be reinstated.  We note that the applicant received an Article 15 on 2
May 1997 and the punishment included  a  reduction  to  the  grade  of
airman and forfeitures of $75.00 pay per month for  two  months  which
were  suspended  until  1  November  1997.   On  10  June  1997,   the
applicant’s commander subsequently vacated the  reduction  portion  of
the suspension for the applicant’s failure  to  go  to  his  appointed
place  of  duty  on  17  May  1997.   Another  Article  15  was   also
administered for this same offense.  The commander, in his  statement,
indicated that he wanted to give the applicant’s stripe back after  he
completed a complete turnaround, which the applicant did; however,  he
was informed that because of the vacation action,  he  was  unable  to
restore the applicant’s grade.  The  applicant’s  flight  leader  also
stated  that  since  completing  the  punishments,   the   applicant’s
performance was exemplary.  It appears that the applicant’s  commander
was misinformed and would have  actually  been  able  to  restore  the
applicant’s grade within  a  four-month  period.   As  stated  by  the
Associate Chief, Military Justice Division, there are no legal  errors
requiring corrective action; however, as a matter of equity, and based
on the statements by the applicant’s commander and flight  leader,  we
are persuaded that the applicant’s date of rank to the grade of airman
first  class  should  be  restored.   Further,  we  believe  that  the
applicant would have been recommended for promotion by  his  commander
to the grade of senior airman on the basis of his
performance after the punishment was imposed.  Therefore, we recommend
applicant’s records 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.  The  vacation  of  suspended  nonjudicial   punishment   which
provided for the reduction in grade from airman first class to airman,
under the provisions of Article 15, Uniform Code of  Military  Justice
(UCMJ), imposed on 10 June 1997, be set aside and  expunged  from  his
records, and all rights, privileges, and property of which he may have
been deprived, be restored.

    b.  He was promoted to the grade of senior airman (E-4)  effective
and with date of rank of 31 May 1998.

_______________________________________________________________________
_____________________

The following members of the  Board  considered  this  application  in
Executive Session on 27 April 1999, under the provisions  of  AFI  36-
2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Ms. Dorothy P. Loeb, Member
              Ms. Olga M. Crerar, Member

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

   Exhibit A.  DD Form 149, dated 4 May 98.
   Exhibit B.  Applicant's Microfiche Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 10 Jul 98.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 20 Jul 98.
   Exhibit E.  Letter, AFBCMR, dated 3 Aug 98.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair


INDEX CODE:  126

AFBCMR 98-01346




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:

      The pertinent military records of the Department of the Air
Force relating to, be corrected to show that:

            a.  The vacation of suspended nonjudicial punishment which
provided for the reduction in grade from airman first class to airman,
under the provisions of Article 15, Uniform Code of Military Justice
(UCMJ), imposed on 10 June 1997, be, and hereby is, set aside and
expunged from his records, and all rights, privileges, and property of
which he may have been deprived, be restored.

            b.  He was promoted to the grade of senior airman (E-4)
effective and with date of rank of 31 May 1998.







   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency