RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 99-00816 (Cs #2)
                 INDEX CODE 131.09
      XXXXXXX          COUNSEL:  None

      XXXXXXX          HEARING DESIRED:  No

APPLICANT REQUESTS THAT:

1.    His reenlistment eligibility (RE) code be changed  to  one  that
will permit him the option of reenlisting.

2.    He be promoted to the grade of senior airman (SRA).

3.    The back pay be donated  to  a  cause  assisting  other  falsely
accused veterans.

4.    He be given an apology letter for the 23 days of extra duty.

APPLICANT CONTENDS THAT:

He received the “4E” RE code due to his failure to make SRA, which was
the direct result of the two unjust Article 15s, which  were  declared
void in his earlier AFBCMR case [#98-00011]. He met and exceeded every
qualification to be an SRA.  He thought winning his first  case  would
have given him the SRA, but  he  learned  this  was  not  so  and  now
believes this process will never end.

A copy of applicant's complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

On 22 October 1998, the Board granted the applicant’s request to  have
two Article 15s removed from his records.  A copy  of  the  Record  of
Proceedings (ROP) for the first appeal is at Exhibit C.

Applicant’s Enlisted Performance Reports (EPRs) are  not  “firewalled”
and contain both positive and negative remarks.  The  overall  ratings
are: 4 (downgraded from 5), 2  (downgraded  from  3; the  Article  15s
occurred during this rating  period  but  are  not  mentioned  on  the
report), and 3.

After 4 years of active service, he was honorably released from active
duty in the grade of airman first class on 19 October 1996 with an  RE
code of “4E”  (Grade  is  airman  first  class  or  below  and  airman
completed 31 or more months, if a first-term airman).  RE  codes  from
the “1” series render a member “Eligible for Immediate  Reenlistment.”
RE  codes  from  “3”  and  “4”  series  indicate  “Conditions  Barring
Immediate Reenlistment” and are “waiverable.” In other words, “3”  and
“4” RE codes permit an individual to apply for enlistment and,  should
he/she have desirable skills and is otherwise acceptable, the Reserves
may elect to waive the  ineligibility  and  allow  the  individual  to
enlist.

The  remaining  relevant  facts  pertaining  to  the  instant  appeal,
extracted from the applicant’s military records, are contained in  the
letters  prepared  by  the  appropriate  offices  of  the  Air  Force.
Accordingly, there is no need to recite these facts in this ROP.

AIR FORCE EVALUATION:

The Chief, Skills  Management  Branch,  HQ  AFPC/DPPAE,  provides  his
rationale for recommending the case be denied.  However, if the  Board
decides to promote the applicant to SRA, then the RE  code  should  be
changed to “3K” (Reserved for use by HQ AFPC or  the  AFBCMR  when  no
other RE code applies or is appropriate).

A complete copy of the evaluation is at Exhibit D.

The Chief, Inquiries/AFBCMR Section,  HQ  AFPC/DPPPWB,  discusses  the
applicant’s  promotion  eligibility  as  originally  affected  by  the
Article 15s and by their subsequent removal.  On 20 October 1995,  the
applicant met the basic eligibility requirements for promotion to SRA;
however, he needed his commander’s recommendation. As the Chief  feels
he is not in a position at  this  time  to  determine,  based  on  the
applicant’s circumstances and his EPRs, if his  commander  would  have
approved him for promotion, he defers to the decision of the Board. If
it chooses to promote the applicant to SRA, [it would become effective
20 October 1995.]

A complete copy of the evaluation, with attachment, is at Exhibit E.

The Staff Judge Advocate (SJA), HQ AFPC/JA, indicates  that,  although
the only criterion under AFI  36-2502  which  the  applicant  did  not
fulfill on 20 October 1995 was a recommendation by his commander  that
he be promoted, the applicant’s EPRs throughout his term of enlistment
were marginal at best, were twice downgraded by the rater’s rater  and
do not show a service record which would have been likely to result in
a recommendation for
promotion by his commander.   The  SJA  opines  that  it  might  do  a
disservice to both the applicant and the Air Force to have him reenter
active duty.

A complete copy of the evaluation is at Exhibit F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  provided  a  duplicate  response  by  both  letter  and
electronic mailgram. He contends he was a good soldier who worked hard
every day. No one gets promoted if removed from the  eligibility  list
and two Article 15s do  that.   There  is  nothing  wrong  with  being
average as long as you do your best. The same  commander  who  imposed
the Article 15s downgraded his one marginal EPR.  If you took away all
the “3s,” or average people, you wouldn’t have any military or half of
the country.  Even if the Board changes the RE code he probably  would
not reenlist because of his bad experience.   Since  the  Article  15s
have been voided, he has been promoted twice as a  civilian.  He  asks
for justice with promotion to SRA and an honorable RE code.

In a follow-up rebuttal, he asserts he would have been promoted to SRA
and tested for staff sergeant were it not for the  now-voided  Article
15s.

Applicant’s complete rebuttals are at Exhibit H.

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 to warrant  promotion  to
SRA. In an earlier case, the applicant requested that two Article  15s
be removed from his records. While the early removal  of  the  Article
15s from his Unfavorable Information  File  could  have  been  a  mere
administrative  action,  the  available   evidence   did   raise   the
possibility that he may have been cleared of the charges against  him,
as he contended. Therefore, on the basis of clemency,  we  elected  to
resolve any doubt in his favor and  recommended  the  Article  15s  be
removed. In the instant case, we  presume  the  commander  would  have
recommended the  applicant  for  promotion  but  for  the  nonjudicial
punishments. Consequently, our recommendation that he be  promoted  to
SRA is driven by the  same  basis  that  drove  our  initial  decision
regarding the Article 15s--clemency and the benefit of the  doubt.  By
the same token, we do not believe our presumption should be carried so
far as to grant him an RE code that renders him eligible for immediate
reenlistment.  With the removal of the Article 15s and  his  promotion
to SRA, the “4E” code he received is no longer correct.  We believe  a
reasonable compromise would be to award the applicant the  “3K”  code,
which is also a  “waiverable”  RE  code  but  with  a  more  innocuous
definition than the “4E”  he  received.  This  waiverable  code  would
permit him to apply for  enlistment  and,  should  he  have  desirable
skills and is otherwise acceptable, the Reserves may  elect  to  waive
his ineligibility and  allow  him  to  enlist.  The  applicant  should
understand that this RE code change in no way  obligates  any  of  the
Services to accept him for enlistment.  As for his requests  that  his
back pay be donated  to  a  “cause  assisting  other  falsely  accused
veterans” and he be given a letter of apology, it  is  neither  within
our purview to direct how his back pay should be spent nor appropriate
for us to apologize for disciplinary actions that may have been proper
and reasonable at the time.  Therefore, we recommend  his  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.  He was promoted to the grade of senior airman, effective and
with a date of rank of 20 October 1995.

      b.  In conjunction with his honorable release from  active  duty
on 19 October 1996, he was issued a reenlistment eligibility  code  of
“3K,” rather than “4E.”

The following members of the  Board  considered  this  application  in
Executive Session on 28 February 2000, under the provisions of AFI 36-
2603:

                  Ms. Martha Maust, Panel Chair
                  Mr. William E. Edwards, Member
                  Mr. Grover L. Dunn, Member

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

   Exhibit A.  DD Form 149, undated, received 29 Mar 99, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  ROP dated 8 Dec 98, w/atchs.
   Exhibit D.  Letter, HQ AFPC/DPPAE, dated 23 Apr 99.
   Exhibit E.  Letter, HQ AFPC/DPPPWB, dated 28 Apr 99, w/atch.
   Exhibit F.  Letter, HQ AFPC/JA, dated 17 May 99.
   Exhibit G.  Letter, AFBCMR, dated 21 Jun 99.
   Exhibit H.  Letters, Applicant, dated 24 Jun 99, and undated.




                                   MARTHA MAUST
                                   Panel Chair

AFBCMR 99-00816




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 XXXXXXX, XXXXXXX, be corrected to show that:

           a.  He was promoted to the grade of senior airman,
effective and with a date of rank of 20 October 1995.

           b.  In conjunction with his honorable release from active
duty on 19 October 1996, he was issued a reenlistment eligibility code
of “3K,” rather than “4E.”





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency