RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-00323
INDEX CODE: 111.02
APPLICANT COUNSEL: None
SSN HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
His date of rank (DOR) be reinstated to its original date of 1 Mar
98. He would also like his effective date of promotion changed to
allow him to receive back pay.
_________________________________________________________________
APPLICANT CONTENDS THAT:
His squadron commander reinstated his DOR and because of
administrative shortfalls it wasn’t accomplished. He has tried
through several administrative channels to have this corrected and is
now appealing to the BCMR.
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 technical sergeant (TSgt).
The applicant was tentatively selected for promotion to Technical
Sergeant during the 97E6 promotion cycle. His promotion was placed on
hold due to pending judgement by civilian court. The applicant was
convicted by a civilian court, which made him ineligible for promotion
per AFI 36-2502.
The wing commander reinstated his promotion eligibility effective 30
Dec 99.
The applicant was considered and selected for promotion to TSgt for
cycle 00E6. He was promoted to the grade of TSgt effective and with
DOR of 1 Sep 00.
_________________________________________________________________
AIR STAFF EVALUATION:
The Chief, Inquiries/AFBCMR Section, AFPC/DPPPWB, reviewed this
application and stated under normal circumstances the applicant’s
promotion would have been effective on 1 Mar 98, but his commander
placed his promotion in a withhold status pending outcome of civil
court proceedings. The civilian court convicted the applicant and his
punishment consisted of summary probation for 2 years, $500 fine,
state penalty fund assessment, and 240 hours of community service. In
accordance with AFI 36-2502, Table 1.1, Rule O, an enlisted member is
ineligible for promotion when convicted by civilian court or
undergoing punishment, suspended punishment/sentence, probation, work
release program, or any combination of these or similar court ordered
conditions. The ineligibility period for promotion based on
conviction by civil court is equal to the maximum confinement for the
same or closely related offense under the manual for court martial.
This conviction resulted in the applicant being ineligible for
promotion for a period of 5 years. The applicant was not exonerated
of any wrongdoing, and as a result, his promotion to TSgt was neither
appropriate nor warranted. Based on the rationale provided they
recommend denying the applicant’s request (Exhibit C).
_________________________________________________________________
APPLICANT'S REVIEW OF AIR STAFF EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 9
Mar 2001, for review and response. 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. Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice. We took notice of the
applicant’s complete submission in judging the merits of the case;
however, we agree with the opinion and recommendation of the Air Force
and adopt their rationale as the basis for our conclusion that the
applicant has not been the victim of an error or injustice. Although
the applicant pled Nolo Contendre as part of a plea bargain, he was
nevertheless convicted of a lesser offense by a civilian court
rendering him ineligible for promotion until 19 May 02. The
applicant's new commander was apparently miscounseled that he could
reinstate the applicant's promotion which he did and the applicant
assumed the new rank with a date of rank of 1 Mar 98. However, we
note that only the Wing Commander can waive any portion of the
ineligibility period; and secondly, the applicant was never exonerated
of any wrongdoing. Therefore, we believe the promotion effective 1
Mar 98, was neither appropriate or warranted. The applicant has not
established he was treated any differently than others similarly
situated. It appears the Wing Commander rendered some measure of
clemency when he reinstated the applicant's promotion eligibility in
Dec 99, well before the end of the ineligibility period and the
applicant has been subsequently promoted. In our opinion, the
applicant has not established that he has been the victim of either an
error or an injustice. In view of the foregoing and in the absence of
evidence to the contrary, we find no compelling basis to recommend
granting the relief sought in this application.
_________________________________________________________________
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 8 May 01, under the provisions of AFI 36-2603.
Mr. Teddy L. Houston, Panel Chairman
Mr. John L. Robuck, Member
Mr. Edward H. Parker, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 30 Jan 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPPWB, dated 15 Feb 01.
Exhibit D. Letter, SAF/MIBR, dated 9 Mar 01.
TEDDY L. HOUSTON
Panel Chair
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