RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  99-00581
                             INDEX CODE: 133.01


      XXXXXX           COUNSEL:  None


      XXXXXX           HEARING DESIRED:  No

APPLICANT REQUESTS THAT:

He be reinstated to the grade of staff sergeant (SSgt) (E-5).

APPLICANT CONTENDS THAT:

He completed the Air Force Return to Duty (RTD) Program in January 1998.
He has now been on active duty without any problems.  He has three children
and a wife and living on an airman first class (E-3) pay is very hard to
do.  His wife is sick most of the time and he has many medical bills.

In support of the appeal, applicant submits a personal statement and
statements from the Commander, XX MDSS/CC and Flight Commander, Personnel
and Administration.

Applicant's complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

The applicant is currently serving in the Regular Air Force in the grade of
airman (E-2).

Applicant was tried by a general court-martial on two charges:  Charge I
and its specifications alleged that on or about 2 April 1995 and 1 March
1996, applicant wrongfully appropriated the property of the United States
government, including radios and other military property, in violation of
Article 121, Uniform Code of Military Justice (UCMJ).  Charge II involved
sixteen specifications of selling or wrongfully disposing of military
property of the United States, in violation of Article 108, UCMJ.  The
applicant pled guilty to the lesser included offense of wrongful
appropriation in Charge I and certain language of the specifications was
therefor substituted.  He pled guilty to four specifications of Charge II
and eleven specifications were withdrawn by the convening authority.  On 18
December 1996, he was sentenced to a bad conduct discharge (BCD),
confinement for 30 months and reduction to airman basic (AB).

On 28 February 1997, the convening authority approved the findings and
sentence, except for the part of the sentence extending to the BCD.
Pursuant to revised Article 58b, UCMJ, Section (b), waiver of the
forfeitures of all pay and allowances was approved 31 December 1996, for a
period of six months or upon completion of confinement, whichever is
sooner.  Unless competent authority otherwise directed, upon completion of
the sentence of confinement, applicant was required under Article 76a,
UCMJ, to take leave pending completion of appellate review of the
conviction.

On 20 February 1998, the portion of the sentence promulgated in GCMO No XX,
dated 28 February 1997, that provided for a BCD was suspended until 10
February 1999, at which time, unless the suspension was sooner vacated, the
suspended part of the sentence would be remitted.

On 23 June 1998, the sentence to a BCD, confinement for 30 months, and
reduction to AB, was finally affirmed.  Any pay and allowances lost, as a
result of the premature reduction in grade under Article 57(a)(1)(A), UCMJ,
between 1 January 1997 and 28 February 1997, and required forfeitures
collected as a result of Article 58, UCMJ (automatic forfeitures) would be
restored.  That portion of the sentence providing for a BCD was suspended
until 10 February 1999 with a provision of automatic remission thereafter
unless the suspension was sooner vacated.

Applicant volunteered and was accepted into the RTDP.  He successfully
completed the RTDP on 11 February 1998.

The applicant was promoted to the grade of airman, effective 14 March 1998
and A1C, effective 14 January 1999.

On 22 June 1999, the applicant was notified he was erroneously promoted to
the grade of airman and A1C incurring a debt of $928.20.

In accordance with AFI 36-2502 (Airman Promotion Program), Table 1.1, Rule
G, a member who has been convicted by court-martial, or is undergoing
punishment/suspended punishment imposed by CM is ineligible for promotion.
Individuals may be promoted to AB through A1C who exceed time-in-grade
(TIG) and time-in-service (TIS) requirements the day after the
ineligibility condition no longer exists.  Since the BCD was suspended
through 10 February 1999, the applicant was not eligible for promotion to
airman until 11 February 1999, the day following the suspended discharge
and would not be time-in-grade eligible to A1C until 11 December 1999, upon
completion of the required ten months time-in-grade.

APR/EPR profile since 1988 reflects the following:

      PERIOD ENDING    EVALUATION OF POTENTIAL

            07 Mar 88        8
            07 Mar 89        9
            07 Mar 90        5  (New System)
            01 Sep 90        4
            01 Sep 91        5
            01 Jul 93        5
            01 Jul 94        5
            01 Jul 95        5
            01 Jul 96        3
            09 Jul 98        5
            09 Jul 99        5

AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, Air Force Legal Services
Agency, AFLSA/JAJM, reviewed this application and states that the applicant
does not allege that any injustice or legal error occurred during his court-
martial.  There is nothing in the file which indicates the occurrence of
any error requiring corrective action, nor of any military injustice.
There further seems to be no substantive justification for restoring
applicant’s grade other than his successful completion of the RTD Program
and the two letters from his flight and squadron commanders supporting his
request for a record review.  The file reflects that the applicant has
received substantial clemency.  He has avoided a punitive discharge and can
leave the Air Force at the appropriate time under honorable conditions.
Nonetheless, the Board does have the discretionary power to restore the
applicant’s rank as a matter of equity.  Given the applicant’s failure to
make a case for, or provide any evidence of an error or injustice in his
case, there does not appear to be any compelling reasons to grant the
relief requested.  The applicant’s request should be denied for failing to
provide substantive argument for additional relief from his original
sentence.  Further, after reviewing the available records, their office,
from a military point of view, must conclude that administrative relief is
not warranted.  There are no legal errors requiring correction, and the
applicant has failed to provide evidence of an injustice calling for
restoration to the grade and rank the applicant held at the time he
committed his offenses.  Based on the evidence provided, they recommend
denial of applicant's request.

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

The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, also reviewed this
application and states that the applicant has been advised through his
servicing Military Personnel Flight (MPF) that he was not eligible to be
promoted to airman until 11 February 1999, the day following the suspended
discharge and will not be eligible for promotion to A1C until 11 December
1999 upon completion of the required 10 months (TIG) provided he is
recommended by his commander and is not ineligible for any of the reasons
outlined in AFI 36-2502, Table 1.1.  His date of separation is 31 July
2000.  If promoted to A1C on 11 December 1999, he would not meet the
minimum 20 months TIG requirement to be promoted to senior airman (SrA)
until 11 August 2001, after his 31 July 2000 date of separation.  If the
applicant’s grade is restored to SSgt as he requests, he is not eligible
for supplemental promotion consideration to technical sergeant (TSgt) for
any previous promotion cycles as a result of the court-martial and
suspended BCD until 10 February 1999.

A complete copy of their evaluation, with attachment, is attached at
Exhibit D.

The Staff Judge Advocate, AFPC/JA, also reviewed this application and
states that they concur with the recommendations of AFLSA/JAJM and HQ
AFPC/DPPPWB to deny applicant’s requested relief.

A complete copy of their evaluation is attached at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinions and states that on 18 December
1996, he found himself court-martialed and in military confinement.  His
welcoming to the military correctional system was just the beginning of
many injustices to come.  Many errors and injustices have occurred to him
while serving on active duty since his RTDP was completed.  He has 17 years
in the military and wants, more than ever, to serve the United States Air
Force and use his training and experience to train others to accomplish the
missions and goals of the USAF.

Applicant's complete response, with attachments, is attached at Exhibit G.

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 his promotion to the
grade of sergeant.  After thoroughly reviewing the evidence of record and
the documentation submitted with this case, we believe that some form of
relief is warranted.  The Board is aware that the Return to Duty Program
(RTDP) is extremely competitive and that relatively few members are
approved for entry in the program.  While the Board does not condone the
seriousness of the misconduct that resulted in the applicant receiving a
court-martial, we note that the applicant has successfully completed the
RTDP and has been returned to duty.  In view of the above, and in
consideration of the applicant's rehabilitation, we recommend that his
record be corrected to show that he was promoted to the grade of sergeant
(E-4) on 30 November 1999.

4.    Insufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice warranting reinstating applicant
to the grade of staff sergeant.  As stated above, this Board does not
condone the applicant's misconduct, and his reduction in grade, based on
this misconduct, was appropriate punishment.  While we recommend that the
applicant be provided an opportunity to be considered for promotion to the
grade of staff sergeant and obtain eligibility for retirement, we do not
believe, nor has he provided sufficient evidence to convince us, that he
should be promoted to staff sergeant by action of the Secretary.
Correcting the record to show he was promoted to the grade of sergeant on
30 November 1999, will provide him with sufficient opportunity to fairly
compete for promotion to the grade of staff sergeant and obtain sufficient
years for retirement eligibility.

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating
to APPLICANT, be corrected to show that he was promoted to the grade of
sergeant (E-4), effective and with a date of rank of 30 November 1999.

The following members of the Board considered this application in Executive
Session on 30 November 1999, under the provisions of AFI 36-2603:

                  Panel Chair
                  Member
              Member

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

   Exhibit A.  DD Form 149, dated 19 Oct 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 27 May 99.
   Exhibit D.  Letter, AFPC/DPPPWB, dated 10 Jun 99, w/atch.
   Exhibit E.  Letter, AFPC/JA, dated 5 Aug 99.
   Exhibit F.  Letter, AFBCMR, dated 23 Aug 99.
   Exhibit G.  Applicant's Response, dated 19 Sep 99.





                       Panel Chair


AFBCMR 99-00581




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 XXXXXX, XXXXXX, be corrected to show that  he  was  promoted  to
the grade of senior airman (E-4), effective and with a date of  rank  of  30
November 1999.




            Director
            Air Force Review Boards Agency