RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-03241
            INDEX CODE:  111.02

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The Enlisted Performance Report (EPR) rendered for the  period  12 Dec
95 through 11 Dec 96 be declared void and removed from her records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The only justification for the referral  EPR  was  her  conviction  by
Special Court-Martial, which was subsequently reversed by  the  United
States Court of Appeals for the Armed Forces (CAAF) and  the  findings
of guilt and the sentence were set aside.

In support of  his  appeal,  the  applicant  provided  copies  of  the
contested report and the CAAF opinion.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System  (PDS)  indicates
that the applicant is currently serving on active duty in the grade of
staff sergeant, having been promoted to that grade on 1 Sep  89.   Her
Total Active Federal Military Service Date (TAFMSD) is 12 Jan 1982.

Applicant's APR/EPR profile since 1990 follows:

     PERIOD ENDING                            EVALUATION

       2 Apr 90  5
       2 Apr 91  5
       2 Apr 92  5
       2 Apr 93  5
       2 Apr 94  5
       2 Apr 95  5
      11 Dec 95  5
  *  11 Dec 96   1 (Referral)

* Contested report.

The remaining  relevant  facts  pertaining  to  this  application  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 Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

The Office  of  the  Staff  Judge  Advocate,  AFPC/JA,  reviewed  this
application and noted that in  Sep  96,  applicant  was  convicted  of
Wrongful Use of Marijuana in violation of Article  112a,  UCMJ,  by  a
Special Court-Martial.  She was given a Bad Conduct Discharge, reduced
in rank to E-l, and placed on involuntary leave under  Article  76(a),
UCMJ,  pending  completion  of  appellate  review.   In  Jan  97,  the
applicant received a referral EPR that stated in the Rater's Comments,
in part:

   -  Midway through rating period, [applicant]  tested  positive  for
   marijuana after a random urinalysis test.
   -  Subsequently, she was  convicted  by  Special  Court-Martial  of
   marijuana use, reduced to her present rank and given a Bad  Conduct
   Discharge; do not promote.

In Aug 00, the CAAF reversed her conviction and set aside the  finding
of guilty and the sentence.

JA indicated that if the Board decides to consider this application on
the merits, they believe the entire referral EPR should not be removed
from applicant's record.  They reviewed the  written  opinion  of  the
CAAF decision to reverse the applicant’s conviction.  In summary,  the
Court decided that the military judge abused his discretion during the
court-martial by allowing evidence of another positive  urinalysis  to
be presented to the court-martial members.  The decision to reverse in
no way amounted to a finding that applicant was factually innocent  of
the charges, but rather, held that a decision by the military judge to
admit certain evidence was an error warranting  reversal.   Given  the
analysis of the CAAF, the only circumstance that has actually  changed
is that applicant has not been convicted  of  any  offense  under  the
UCMJ.  The fact that  she  had  a  positive  urinalysis  itself  would
support the comments and evaluations in the EPR with the exception  of
those references to a  court-martial  conviction.   Consequently,  the
only relief she would be entitled to would be to remove any references
to the court-martial conviction from the referral EPR.

In JA’s opinion, if the BCMR grants relief in this case, they  believe
it should be limited to removing  the  words  “Subsequently,  she  was
convicted by Special Court-Martial of marijuana use,  reduced  to  her
present rank  and  given  a  Bad  Conduct  Discharge."  In  all  other
respects, the EPR would still be accurate.

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

The Enlisted  Promotion  and  Military  Testing  Branch,  AFPC/DPPPWB,
reviewed this application and indicated that  a  referral  EPR  is  an
automatic  ineligible  for  promotion  reason   in   accordance   with
HQ AFMPC/DPMA 091602Z Jun 95 Message and AFI 36-2502, Airman Promotion
Program, Table 1.1, Rule 22, dated 1 Jul  99.   If  the  referral  EPR
closing 11 Dec  96  is  removed  as  requested,  the  applicant  would
normally  be  entitled  to  supplemental  promotion  consideration  to
technical sergeant beginning with  the  97E6  cycle  provided  she  is
recommended by her commander and is otherwise qualified.  However,  as
a result of her circumstances, the applicant has not received  an  EPR
subsequent to the referral EPR (reason  for  ineligibility),  has  not
taken the required promotion tests, and has  not  been  considered  or
recommended for promotion for the 97E6, 98E6,  99E6,  00E6,  and  01E6
cycles.

According to DPPPWB, requests to the Air Force Board for Correction of
Military Records (AFBCMR) are reviewed to determine if  administrative
relief can be granted prior to further processing to  the  AFBCMR  for
resolution.  In the applicant's case, she is ineligible and cannot  be
considered for the  current  cycle,  01E6  (selections  will  be  done
approximately 31 May 01 and are effective 1 Aug 01  -  1  Jul  02)  or
supplemental promotion consideration for any prior cycles because  she
does not have an EPR that was rendered subsequent to the referral  EPR
that is not referral with an overall rating of "3" or  higher.   Since
she was not given an opportunity to receive another EPR prior  to  the
Promotion Eligibility Cutoff Date (PECD) of 31 Dec  97  for  the  98E6
(the cycle following the 31 Dec 96 PECD for the 97E6 cycle, where  the
referral EPR rendered her ineligible), and to ensure she  is  provided
timely promotion consideration (if eligible) as a result of  her  High
Year Tenure (HYT) Date of Jan 02, the following guidance was  provided
to her servicing Military Personnel Flight (MPF): (a) If her commander
nonrecommends her for promotion  consideration  for  the  98E6,  99E6,
00E6, or 01E6 cycles, she must be notified in  writing  in  accordance
with AFI 36-2502, paragraph 3.2.  A copy of the  commander's  decision
must be provided to HQ AFPC/DPPPWM (Weighted Airman  Promotion  System
Procedures Section); and (b)  If  the  commander  recommends  her  for
promotion consideration, as an exception to policy, a Directed by  HAF
(DBH) EPR to close out after she has  60  days  supervision,  will  be
rendered.  This EPR will be used  to  determine  her  eligibility  for
cycles 98E6 through 01E6.  If the DBH EPR is a referral, she will  not
be eligible for any of these  cycles.  However,  if  the  EPR  is  not
referral, it will be used to determine her eligibility for cycles 98E6
through 01E6.  After the EPR is rendered, she will be given  at  least
30 days study time and administered the appropriate tests.  If she  is
considered for promotion to the grade of technical  sergeant  for  the
98E6 or later cycles and the AFBCMR removes the referral  EPR  closing
11 Dec 96, she could be provided supplemental  consideration  for  the
97E6  cycle  provided  she  is  otherwise  eligible,  to  include  her
commander's recommendation.

A complete copy of the DPPPWB  evaluation,  with  attachments,  is  at
Exhibit D.

The  Performance  Evaluation  Section,  AFPC/DPPPEP,   reviewed   this
application  and  stated  that  they  accepted  the  advisory  opinion
rendered by AFPC/JA.  They, too, recommend the AFBCMR remove only  the
words, “Subsequently, she was convicted by  Special  Court-Martial  of
marijuana use, reduced to her present rank and  given  a  Bad  Conduct
Discharge” from the  contested  EPR.   As  AFPC/JA  pointed  in  their
advisory, “The fact that she had a positive  urinalysis  itself  would
support the comments and evaluations in the EPR with the exception  of
those references to a court-martial conviction.”

DPPPEP indicated that although the U. S. Court of  Appeals  set  aside
the applicant's court-martial, they did so because the judge  made  an
error--not because the applicant was cleared  of  the  charges  levied
against her.  Therefore, they suggested the AFBCMR direct voidance  of
the comments described above and maintain the rest of the  report  “as
is.”

A complete copy of the DPPPEP evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the advisory opinions and furnished a response  and
additional documentary evidence 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.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice warranting partial relief.

       a.  The  available  evidence  reveals  that   the   applicant’s
conviction by Special Court-Martial was set aside by the CAAF based on
an error made by the judge  to  allow  inadmissible  evidence.   As  a
result, we are of the opinion that the references to the court-martial
conviction should be removed from the  contested  EPR,  the  contested
report should be amended to reflect her original  rank  prior  to  the
court-martial conviction,  and  she  should  be  provided  appropriate
supplemental  promotion  consideration  with  her  corrected   record.
Accordingly, we recommend that the applicant’s records be corrected as
indicated below.

      b.  We note the applicant’s request that the contested report be
removed from her records in its entirety.  However, after a review  of
the facts and circumstances of this case, we are  not  persuaded  that
such relief is warranted.  In this respect, we note  that  the  court-
martial conviction for wrongful use of  marijuana  was  based  on  her
having a positive urinalysis.  As previously indicated, the conviction
was set aside based on the error of the judge  to  allow  inadmissible
evidence, not  that  the  applicant  was  factually  innocent  of  the
charges.  No evidence has  been  presented  which  would  lead  us  to
believe that the positive urinalysis  was  erroneous.   Therefore,  we
agree with offices of primary responsibility (OPRs) that the fact  the
applicant had a positive urinalysis itself supports the  comments  and
evaluations in the EPR.  Accordingly, the applicant’s request  is  not
favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating  to  APPLICANT,  be  corrected  to  show  that  the  Enlisted
Performance Report, AF Form 910, rendered  for  the  period  12 Dec 95
through 11 Dec 96 be amended in Section I (Ratee Identification Data),
Item 3, to read “SSgt,” rather than “AB”; and be amended in  Section V
(Rater’s Comments), Line 11, to read “SSgt M---,” rather than “AB M---
”; and, by deleting the last  two  lines  in  Section  V,  which  read
“Subsequently, she was convicted by Special Court-Martial of marijuana
use, reduced to her present rank and given a Bad Conduct Discharge; do
not promote.”

It  is  further  recommended  that  she   be   provided   supplemental
consideration for promotion to the grade of technical sergeant for all
appropriate cycles beginning with cycle 98E6.

If selected for promotion  to  the  grade  of  technical  sergeant  by
supplemental   consideration,   she   be   provided   any   additional
supplemental consideration required as a result of that selection.

If  AFPC  discovers  any  adverse  factors  during  or  subsequent  to
supplemental consideration that are separate and apart, and  unrelated
to the issues involved in this application that  would  have  rendered
the applicant ineligible for the promotion, such information  will  be
documented and presented to the Board for a final determination on the
individual's qualifications for the promotion.

If supplemental promotion consideration results in the  selection  for
promotion to the higher grade, immediately after  such  promotion  the
records shall be corrected to show that she was promoted to the higher
grade on the date of rank established by  the  supplemental  promotion
and that she is entitled to all pay, allowances, and benefits of  such
grade as of that date.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 9 May 01, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Vice Chair
      Mr. Thomas J. Topolski, Member
      Ms. Mary C. Johnson, Member

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

     Exhibit A.  DD Form 149, dated 20 Nov 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/JA, dated 29 Jan 01.
     Exhibit D.  Letter, AFPC/DPPPWB, dated 13 Feb 01, w/atchs.
     Exhibit E.  Letter, AFPC/DPPPEP, dated 5 Mar 01.
     Exhibit F.  Letter, SAF/MIBR, dated 30 Mar 01.
     Exhibit G.  Letter, applicant, dated 7 May 01, w/atchs.





                                   THOMAS S. MARKIEWICZ
                                   Vice Chair










AFBCMR 00-03241




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 the Enlisted Performance
Report, AF Form 910, rendered for the period 12 Dec 95 through 11 Dec
96 be amended in Section I (Ratee Identification Data), Item 3, to
read “SSgt,” rather than “AB”; and be amended in Section V (Rater’s
Comments), Line 11, to read “SSgt M---,” rather than “AB M---”; and,
by deleting the last two lines in Section V, which read “Subsequently,
she was convicted by Special Court-Martial of marijuana use, reduced
to her present rank and given a Bad Conduct Discharge; do not
promote.”

      It is further directed that she be provided supplemental
consideration for promotion to the grade of technical sergeant for all
appropriate cycles beginning with cycle 98E6.

      If selected for promotion to the grade of technical sergeant by
supplemental consideration, she be provided any additional
supplemental consideration required as a result of that selection.

      If AFPC discovers any adverse factors during or subsequent to
supplemental consideration that are separate and apart, and unrelated
to the issues involved in this application that would have rendered
the applicant ineligible for the promotion, such information will be
documented and presented to the Board for a final determination on the
individual's qualifications for the promotion.

      If supplemental promotion consideration results in the selection
for promotion to the higher grade, immediately after such promotion
the records shall be corrected to show that she was promoted to the
higher grade on the date of rank established by the supplemental
promotion and that she is entitled to all pay, allowances, and
benefits of such grade as of that date.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency