RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01543
            INDEX CODE:  105.01, 111.02,
                         123.00, 131.10
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His lost time be removed from his records.

2.  His court-martial action be removed from his records.

3.  His referral Enlisted Performance Report (EPR) closing  30  Jan  03,  be
removed from his records.

4.  His selection for promotion  to  the  grade  of  technical  sergeant  by
restored.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In  September  2001,  he  was  accused  of  aggravated  sexual  assault  and
providing alcohol to a minor.  While he was on leave in --- his niece's  14-
year old friend first accused him  of  sexually  assaulting  her  and  after
changing her story several times said she had consensual sex with  him.   He
purchased alcohol and drank while he was  packing  to  return  to  his  duty
station.  When he noticed his niece and her friend  were  sneaking  alcohol,
he immediately confiscated the bottle from them.  He was later  arrested  by
civilian authorities and was eventually tried  by  court-martial  in  August
2002 for Carnal Knowledge and providing alcohol  to  a  minor.   During  the
trial his niece stated that she made the alcoholic drinks for  her  and  her
friend.  His counsel questioned his 7-year old daughter  who  said  she  saw
the teenage girls sneaking the alcohol, but she was  not  used  to  testify.
He was acquitted of the Carnal Knowledge charge and convicted  of  providing
alcohol to a minor.

At the time he had a line number for promotion to technical sergeant.   Upon
his return from confinement, his commander notified  him  that  he  was  not
recommending him for promotion.  His commander stated that he had spoken  to
members of the trial panel.  He was  later  told  that  it  was  not  proper
conduct for anyone to speak to the panel  members  about  the  voting  case.
Prior to this unfortunate incident he was regarded as one  of  the  sharpest
troops in his unit.  As a result of the court-martial,  he  has  a  referral
EPR.  His previous EPRs show he is deserving of the promotion  or  at  least
the opportunity to test again.  He will need an EPR that is not  a  referral
before 31 Dec 03 in order to be eligible to test in  the  2004  test  cycle.
Applicant feels as though he is still being punished for  an  incident  that
started in 2001.  He understands that  being  convicted  of  any  crime  has
repercussions and is punishable.   Conviction  does  not  mean  guilt.   The
charge of providing  alcohol  to  a  minor  might  warrant  a  reprimand  or
nonjudicial punishment, but not alter the positive career he  has  had  thus
far and jeopardize his military future.

In  support  of  his  request,  applicant  provided  a  personal  statement,
documentation associated with his request for clemency,  extracts  from  his
court-martial  proceedings,  and   character   references.    His   complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  26
Oct 88.  He was progressively promoted  to  the  grade  of  staff  sergeant,
having assumed that grade effective and with a date of rank of 20 Sep 97.

On  1  Aug  02,  applicant  was  tried  by  general  court-martial   for   a
specification of carnal knowledge  and  providing  alcohol  to  minors.   He
pleaded not guilty  to  both  charges.   He  was  acquitted  of  the  carnal
knowledge charge and found guilty  of  providing  alcohol  to  minors.   His
sentence, adjudged was a reprimand, forfeiture of $500  pay  per  month  for
two months and confinement for 18 days.  However, because of good  time,  he
only served 8 days in confinement.

Applicant was tentatively selected for promotion to the grade  of  technical
sergeant for promotion cycle 02E6.   His  promotion  sequence  number  would
have incremented on 1 Mar 03; however, in August  2002  his  commander  non-
recommended the applicant for promotion.  He was also ruled  ineligible  for
promotion due to the court-martial and receiving a referral EPR  closing  30
Jan 03.

The following is a resume of the applicant's recent EPR profile:

      PERIOD ENDING    PROMOTION RECOMMENDATION

            30 Jan 03        3 - Contested Report
            13 Apr 02        4
            13 Apr 01        5
            13 Apr 00        5
            13 Apr 99        5
            13 Apr 98        5

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states the applicant  implies  that  his
crime is not one that ordinarily rises to the disciplinary level  of  court-
martial.  While he was convicted of the  lesser  of  the  two  charges,  the
charge he was convicted of is a valid charge under the UCMJ and  the  court-
martial is a valid option of discipline format.

The applicant seeks redress for the administrative repercussions  of  having
been convicted of a  crime.   He  has  identified  no  error  or  injustices
related to the court-martial.  He presents no case to support the relief  he
requests, nor does he demonstrate an equitable basis for relief.   The  JAJM
evaluation is at Exhibit C.

AFPC/DPPPEP recommends denial.  DPPPEP states  that  the  rating  chain  was
following the guidance of  AFI  36-2406  when  they  documented  the  court-
martial in the applicant's performance report.  No support from  the  rating
chain has been provided to support his contention to have the report  voided
and he never provided  any  clear  reasoning  why  the  report  was  not  an
accurate assessment.  He only states the  report  is  interfering  with  his
career as support to void it.   Air  Force  policy  is  that  an  evaluation
report is accurate as written when it becomes a matter of  record.   He  did
not provide any evidence that the 30 Jan  03  report  was  not  an  accurate
assessment when written.  The DPPPEP evaluation is at Exhibit D.

AFPC/DPPPWB defers to the recommendations of DPPPEP  and  JAJM,  and  states
that since his 30 Jan  03  EPR  is  referral,  he  will  be  ineligible  for
promotion consideration for the 2004 cycle.  The  DPPPWB  evaluation  is  at
Exhibit E.

AFPC/DPW recommends denial.  DPW states that in  accordance  with  Title  10
USC and the DoD Financial Management Regulation,  anytime  a  member  spends
time AWOL, deserter, or in any confinement status, whether  it  is  pre-  or
post- trial or in connection with  a  trial,  is  considered  non-creditable
service and is referred to  as  "lost"  time.   The  DPW  evaluation  is  at
Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated his previous  contentions  and  adds  he  provided  the
testimonies of three individuals involved to show that all testimonies  were
different and should show  reasonable  doubt  as  to  how  the  alcohol  was
consumed by the minors.  His referral report  should  have  been  a  Command
Directed report after the court martial.  That way after 60  days  he  could
have received another  report  and  been  eligible  to  test  for  technical
sergeant the following cycle.  The only negative comment in his 2003  report
should have been the court martial.  The alleged incident occurred in  2001,
outside the reporting period.  In addition he did not receive a  performance
feedback.  No effort was made to prevent him from getting a referral  report
as was promised.

In further support of his request, applicant provided  a  PC-III  worksheet,
his  Letter  of  Evaluation  (LOE),  extract  of   AFI   36-2406,   training
certificates, letters of appreciation, and his request  for  clemency.   His
complete submission, with attachments, is 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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice that would warrant  favorable  consideration
of the applicant's stated request.  With  respect  to  the  removal  of  the
court-martial action, the Board is without authority to reverse, set  aside,
or otherwise expunge a court-martial conviction that occurred on or after  5
May 1950.  While the Board is permitted to correct the  records  related  to
action on sentencing, we are not persuaded that such action in this case  is
warranted.  Regarding his request for removal of his referral EPR,  evidence
has not been presented which would lead us to  believe  that  the  contested
EPR was rendered in error or is unjust.  With respect to  his  request  that
his promotion sequence  number  be  reinstated,  his  contentions  are  duly
noted; however, we do not find his  uncorroborated  assertions  sufficiently
persuasive to override  the  rationale  provided  by  the  Air  Force.   The
applicant states that his commander inappropriately denied his promotion  to
technical sergeant.  We note that regardless of his commander's action,  the
court-martial conviction  and  referral  EPR  rendered  him  ineligible  for
promotion.

4.  Notwithstanding  the  above,  and  in  view  of  the  applicant's  prior
outstanding service and the volume of support he has  received,  we  believe
that some relief is warranted.  In this respect, we note that  his  referral
EPR closes 30 Jan 03, requiring his next annual EPR to close on 30  Jan  04.
Since 30 Jan 04 is after the promotion eligibility cut-off date  of  31  Dec
03 for the 04E6 promotion cycle, he will still be ineligible  for  promotion
consideration for that cycle.  The alleged incident occurred  in  2001,  his
court-martial convened in 2002, and the applicant was  rendered  a  referral
EPR in 2003, which will render him ineligible for promotion  throughout  the
2004 testing cycle.  It is our opinion that it would  be  an  injustice  for
the applicant to continue to suffer from the adverse affects of his  actions
for another year.  We believe  that  the  fairest  resolution  would  be  to
recommend that the closeout of his referral EPR  be  changed  to  reflect  a
closeout date of 29 Dec 02.  This  will  allow  his  current  supervisor  to
prepare a  performance  report  prior  to  31 December  03  and  render  him
eligible for promotion consideration for the 2004 testing cycle and  compete
for promotion to technical  sergeant.   Therefore,  we  recommend  that  his
records be corrected as indicated below.

5.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing 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 close-out date  of  his  AF  Form
910, Enlisted Performance Report, rendered for  the  period  14  April  2002
through 30 Jan 2003,  be  corrected  to  reflect  a  close-out  date  of  29
December 2002 rather than 30 January 2002.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2003-
01543 in Executive Session on 29 Oct 03, under the  provisions  of  AFI  36-
2603:

      Ms. Marilyn Thomas, Vice Chair
      Mr. Albert F. Lowas, Jr., Member
      Ms. Cheryl Jacobson, Member

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

    Exhibit A.  DD Form 149, dated 10 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 10 Jul 03.
    Exhibit D.  Letter, AFPC/DPPPEP, dated 22 Aug 03.
    Exhibit E.  Letter, AFPC/DPPPWB, dated 25 Aug 03.
    Exhibit F.  Letter, AFPC/DPW, not dated, w/atchs.
    Exhibit G.  Letter, SAF/MRBR, dated 12 Sep 03.
    Exhibit H.  Letter, Applicant, dated 8 Oct 03.




                             MARILYN THOMAS
                                             Vice Chair

AFBCMR BC-2003-01543




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 APPLICANT, be corrected to show that the close-out date  of  his
AF Form 910, Enlisted Performance Report, rendered for the period  14  April
2002 through 30 Jan 2003, be amended to  reflect  a  close-out  date  of  29
December 2002, rather than 30 January 2003.







                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency