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AF | BCMR | CY2000 | 9803522
Original file (9803522.doc) Auto-classification: Denied


                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03522
            INDEX CODE: 100.00, 131.00

      XXXXXXXXXXXXXXXXX      COUNSEL:  NONE

      XXXXXXXXXXX      HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be restored to his pre-court-martial primary, career,  and  duty  Air
Force Specialty Code (AFSC), “3P0X1” (law enforcement journeyman) as  of  31
October 1997.

2.  His rank be restored to staff sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He has had difficulty in receiving an upgrade from a  one  level  apprentice
in the information management career field.  He also  believes  his  records
to be in error regarding his grade because his appellate counsel  raised  an
issue regarding the judge’s instructions on forfeiture  of  pay  before  the
appellate courts.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 9 June 1987 for a  period  of
four (4) years.

On 26 January 1996, he was court-martialed by a general  court  martial  for
larceny, theft of money.  He was convicted of stealing $6,500 from the  Army
Air Force Exchange Service.  He  pleaded  guilty  to  the  larceny  and  was
sentenced to reduction to the grade of airman  basic,  confinement  for  one
year, and to be discharged from the service with a bad conduct discharge.

He was selected for and completed the  Air  Force  Return  To  Duty  Program
(RTDP) (AFI 31-205, paragraph 54, Corrections Program).   The  RTDP  is  the
Secretarial implementation of 10 U.S.C. & 953 (Remission  or  suspension  of
sentence; restoration to duty; retirement).  He  completed  the  program  in
January 1997 and began a period of suspended punishment on 14 January 1997.

On 31 October 1997, applicant’s Air Force Special Code  (AFSC)  of   “3P0X2”
was merged into “3P0X1.”  The merged specialty title is  “Security  Forces”.
AFSC “3P0X2 is no longer a valid AFSC.

Qualification criteria for entry, award, and retention of  “3P0X2”  at  that
time stated, “Never been convicted by a general, special, or summary courts-
martial.”

On 10 January 1998, applicant’s Bad Conduct Discharge (BCD) was remitted.

Applicant submitted an application to  the  AFBCMR  requesting  that  he  be
given a waiver of high year tenure (HYT) and to reenlist for  six  years  to
acquire sufficient grade for continued military service (TAB 1).

On 12 February 1998, the AFBCMR  granted  applicant’s  request  and  ordered
applicant’s records corrected to reflect that his high year  of  tenure  had
been waived on 11 February 1998, and that the  member  reenlisted  for  four
years on 12 February 1998.  The Board declined at  that  time  to  reinstate
applicant to the grade of E-5.

On 24 September 1998, the Air Force Court of Criminal  Appeals  (AFCCA)  and
the United States Court of Appeals for the Armed  Forces  (USCAAF)  did  not
rule in the applicant’s favor.  Both courts found that although the  judge’s
instruction on forfeitures was not correct,  the  error  had  no  effect  on
applicant because he was past his expiration of term of service  (ETS)  and,
therefore, no longer entitled to  pay  while  in  confinement.   The  USCAAF
found an error in the execution, but not the imposition, of the  portion  of
the sentence relating to reduction  in  grade.   That  Court  corrected  the
reduction, and the  applicant’s  grade  currently  complies  with  both  the
effective statutes and the sentence of the court-martial panel.

Applicant’s overall ratings  on  his  APRs/EPRs  were:  9,9,  (new  system),
4,5,4,5,5,5,5,5,5,5.

_________________________________________________________________

AIR FORCE EVALUATION:

The  Chief,  USAF   Classification   Branch,   AFPC/DPPAC,   reviewed   this
application and states that  qualification  criteria  for  the  merged  AFSC
(3P0X1) contains the same entry, award, and  retention  standard  of  “never
been convicted by a general, special, or summary courts-martial.”  In  order
for applicant to enter AFSC “3P0X1, he must meet the  current  qualification
criteria  for  the  specialty.   Consequently,  unless   his   court-martial
conviction is set aside as if it never happened,  entry  into  the  Security
Forces AFSC is not possible or appropriate.

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

The Staff Judge  Advocate,  AFPC/JA,  also  reviewed  this  application  and
states that the applicant has not  proven  the  existence  of  an  error  or
injustice relating to his removal from the security forces  AFSC.   However,
they are of the opinion that there has been an error in the handling of  his
upgrade to 3-skill level in his current  AFSC.   Therefore,  they  recommend
the Board direct that he be sent to the  appropriate  3-skill  level  school
for training.  In regard to applicant’s request for  restoration  of  grade,
he has not presented any new  evidence  warranting  reconsideration  of  his
request.   There  has  been  no  legal  error  or  injustice   relating   to
applicant’s grade in this case.  Therefore they  recommend  the  application
for reconsideration be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Applicant reviewed the Air Force evaluations and provided a  response,  with
attachments, which is attached at Exhibit F.

Applicant provided additional documentation, which 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.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error  or  injustice  warranting  restoration  of  his
previous  Air  Force  Specialty  Code  (AFSC),  “3P0X1”   (law   enforcement
journeyman),  and  for  restoration  of  his  grade   to   staff   sergeant.
Applicant’s contentions are duly  noted;  however,  absent  more  clear-cut,
substantial evidence, we do not find  these  uncorroborated  assertions,  in
and  by  themselves,  sufficiently  persuasive  to  override  the   rational
provided by the Office of the Staff Judge Advocate.  Therefore, we find  the
applicant has failed to sustain his burden of establishing the existence  of
either an error  or  an  injustice  warranting  favorable  action  on  these
requests.

4.    The comments and recommendations of the  Office  of  the  Staff  Judge
Advocate are  duly  noted,  however  we  have  been  advised  by  Air  Force
officials at HQ ACC/DPAAR, Langley  AFB,  that  applicant  has  successfully
completed 3-skill level schooling and should  now  be  enrolled  in  5-skill
level training.  Therefore, no further action by this Board is required.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 22 March 2000, under the provisions of AFI 36-2603:

            Mr. Thomas S. Markiewicz, Panel Chair
            Mr. Gregory H. Petkoff, Member
            Mr. Wayne R. Gracie, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 14 Dec 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPAC, dated 28 Jan 99.
   Exhibit D.  Letter, AFPC/JA, dated 3 Mar 99, w/atchs.
   Exhibit E.  Letter, SAF/MIBR, dated 22 Mar 99.
   Exhibit F.  Letter, Applicant, dated 28 Mar 99, w/atchs.
   Exhibit G.  Letter, Applicant, undated, w/atchs.




                 THOMAS S. MARKIEWICZ
                 Panel Chair

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