RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01708
            INDEX CODE:  131.09

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His grade of staff sergeant (E-5) be reinstated.

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APPLICANT CONTENDS THAT:

Permanent  reduction  in  grade  is  excessive  punishment   for   one
conviction  of  wrongful  use  of  marijuana  based  on  one  positive
urinalysis.  He is petitioning for a  little  lenience  by  requesting
that his highest grade attained (E-5) be reinstated.

No supporting documentation was provided.   The  applicant’s  complete
submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
13 Apr 81.  He was  progressively  promoted  to  the  grade  of  staff
sergeant (E-5), with an effective date and date of rank of 1  Dec  86.
He was reduced to the grade of senior airman (E-4), with an  effective
date of 29 Jun 01, pursuant to Special  Court-Martial  Order  No  ---,
dated 28 Aug 01.

The following is  a  resume  of  the  applicant’s  Airman  Performance
Report/Enlisted Performance Report ratings subsequent to his promotion
to the  grade  of  E-5  (oldest  to  the  most  recent):   8  (overall
evaluation 0-9), 8, 9, 5 (new rating system - Immediate Promotion),  4
(Ready for Promotion), 4, 4, 4, 3 (Consider),  4,  4,  5,  5,  2  (Not
Recommended at this Time - Referral), and 4.

On 26-29 Jun 01, the applicant  was  tried  before  a  special  court-
martial at --- AFB, CO.  He was charged with a single specification of
wrongful use of marijuana, on or about 15  Nov  00,  in  violation  of
Article 112a, UCMJ.  Contrary to his pleas of not guilty, he was found
guilty.  On 29 Jun 01, the applicant was sentenced to a  reduction  in
grade from staff sergeant (E-5) to senior airman (E-4),  3  months  of
hard labor without confinement, and forfeiture of  $500.00  per  month
for 2 months.  On 28 Aug 01, the convening authority approved only  so
much of the sentence as provided for the  reduction  and  forfeitures.
The portion of the sentence concerning hard labor without  confinement
was disapproved.

On 31 Aug 01, the applicant was relieved from active duty in the grade
of senior airman (E-4) and, effective 1 Sep 01, retired in  the  grade
of E-4 under the provisions of AFI 36-3203 (Maximum Service or Time-In-
Grade).  He had completed a total of 20 years, 4 months and 18 days of
active service for retirement.

On 17 Sep  01,  the  Air  Force  Personnel  Council  (SAF/PC)  made  a
determination that the applicant did not serve satisfactorily  in  any
higher grade than senior airman (E-4).

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied.  JAJM disagrees  with
the applicant’s assertion that  the  sentence  is  too  severe.   JAJM
stated that the applicant was an NCO with almost 20 years  of  service
at the time he provided a urine sample that tested  positive  for  the
presence of a metabolite of marijuana.  During the trial, the forensic
expert testified that the level of marijuana metabolite in applicant’s
urine was 201 nanograms, significantly above the DoD cutoff  level  of
15 nanograms.  Although the applicant pleaded not guilty, at least two-
thirds of the officer and enlisted members  were  convinced  beyond  a
reasonable doubt that applicant had wrongfully  used  marijuana.   The
applicant specifically asked the court to remember his 20  plus  years
of service and not impose a bad conduct discharge.  Both applicant and
his  attorney  submitted  matters  for  the  convening  authority   to
consider; specifically, set aside the hard labor without  confinement.
JAJM stated that the applicant’s argument to the court members was for
any punishment but the discharge -- he was successful.   His  argument
to the convening authority was  for  approval  of  the  reduction  and
forfeitures but disapproval of the hard labor without  confinement  --
he was successful.  The applicant now asks the  AFBCMR  to  disapprove
the reduction as too harsh -- it is not.  The court members took  into
account the applicant’s military record  and  desire  to  retire  when
deciding on an appropriate sentence, as did  the  convening  authority
when taking action on the sentence.  Applicant’s pleas to the  members
and the convening authority secured exactly what he  asked  for.   The
applicant’s court-martial was properly conducted and he  was  afforded
the rights accorded by law.  The applicant has provided no evidence of
a clear error or injustice related to the sentence.  Therefore,  there
is no reason required by law to grant the relief requested.

The AFLSA/JAJM evaluation is at Exhibit C.

HQ AFPC/DPPRRP recommends the application be  denied.   DPPRRP  stated
that Section 8964, Title 10, USC, allows the advancement  of  enlisted
members (when their active service plus service on  the  retired  list
totals 30 years) on the retired list to the  highest  grade  in  which
they served  on  active  duty  satisfactorily  as  determined  by  the
Secretary of the Air Force.   The  Secretary  of  the  Air  Force  has
delegated this authority to the Air Force Personnel Council  (SAF/PC).
On 17 Sep 01, SAF/PC made the determination that the applicant did not
serve satisfactorily in any higher grade  than  senior  airman  (E-4).
DPPRRP stated that the law which allows for  advancement  of  enlisted
members of the Air Force, when their active service  plus  service  on
the retired list totals 30 years, is very specific in its  application
and intent.  SAF/PC’s determination is final for all purposes of  law.
In accordance with Section 8961, Title  10,  USC,  the  applicant  was
correctly retired in the grade of senior airman (E-4), which  was  the
grade he held on the date of  his  retirement.   There  are  no  other
provisions of  law  that  would  allow  for  advancement  of  enlisted
members.  All criteria of the pertinent laws have  been  met  in  this
regard  and  no  error  or  injustices  occurred  in  the  applicant’s
retirement, grade determination or advancement action.

The HQ AFPC/DPPRRP evaluation, with attachments, is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The applicant reviewed the advisory opinions and  indicated  that  the
briefness of his statement is to ask that the Board look at  how  much
it would cost if he waited 10 years  to  be  reinstated  back  to  his
highest rank.  His request is not to disprove his guilt; he only  asks
that the Board grant him lenience from having to pay $25,000.00 over a
10-year period and allow his mistake to only cost him what it will  be
at the end of the Board’s recommendation.  In support of his  request,
applicant submits a letter from his father and a copy of his  DD  Form
149.

The applicant’s complete submission, with attachments, is  at  Exhibit
F.

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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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case.
However, we  agree  with  the  opinions  and  recommendations  of  the
respective Air Force offices and adopt the rationale expressed as  the
basis for our decision that the applicant has failed  to  sustain  his
burden that he has suffered either an error  or  an  injustice.   From
comments contained in his  rebuttal,  it  appears  the  applicant  may
believe his rank will be restored when his active service and time  on
the retired list totals 30 years.  But,  such  action  would  only  be
possible if  the  Personnel  Council  had  determined  he  had  served
satisfactorily in the higher grade.  The  record  clearly  shows  that
they did not make such a determination and the applicant has  provided
no evidence that would lead  us  to  believe  this  determination  was
improper.  Accordingly, in view of the above and  absent  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 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 12 December 2002, under the provisions of AFI 36-
2603:

                  Mr. Albert F. Lowas Jr., Panel Chair
                  Ms. Martha J. Evans, Member
                  Ms. Carolyn B. Willis, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 18 May 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 6 Aug 02.
   Exhibit D.  Letter, HQ AFPC/DPPRRP, dated 23 Aug 02, w/atchs.
   Exhibit E.  Letter, SAF/MRBR, dated 30 Aug 02.
   Exhibit F.  Letter from Applicant, undated, w/atchs.




                                   ALBERT F. LOWAS JR.
                                   Panel Chair