RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-01741
                 INDEX CODE 112.10  131.00  133.01
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to the grade of staff sergeant (SSgt) so that he will
be eligible for reenlistment.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He does not believe the record to be in error or unjust. He  completed
the Return To Duty Program (RTDP) and was allowed to remain on  active
duty. While in the RTDP, he wrote letters to victims of his crimes and
expressed remorse. He had  an  overwhelming  desire  to  changing  his
thinking and negative behavior. He committed himself wholeheartedly to
the rehabilitation process and today he  is  a  different  man.  Since
returning to duty, he has taken advantage of every opportunity to give
back by sharing his experiences with other young airmen in hopes  they
will not travel down the same path  he  took.  His  request  comes  as
respectfully and humbly as he knows how. The Air Force  does  not  owe
him anything; however, he would like to take full  advantage  of  this
second chance and remain on active duty. With his  current  grade,  he
will  not  have  that  opportunity  and  he  respectfully   asks   for
reinstatement to the rank of SSgt. This will  give  him  not  only  an
opportunity to reenlist but  also  to  test  for  promotion  and  earn
technical sergeant (TSgt) or maybe even master sergeant before he ends
his career. He  submits  numerous  character  letters  from  past  and
present  commanders  and  supervisors  that   attest   to   his   duty
performance. He has learned from his past and today strives to be  the
best he can be at everything he does.  He  chose  to  stand  and  take
responsibility for his actions and make amends to the victims  of  his
crimes. He has done all he can to make things right and realizes it is
a privilege and honor to once again serve this country. He vows  never
to bring discredit against it or his profession.

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

_________________________________________________________________

STATEMENT OF FACTS:

The following information was extracted from the applicant’s  military
personnel  records  and  court-martial  records,  which  included  the
Article 32 Investigation and a Security Forces Report of Investigation
(ROI).

The applicant enlisted in the Regular Air Force on 26 Jun 87  and  was
ultimately promoted to the grade of SSgt with a date of rank (DOR)  of
1 May 94. He reenlisted for a period of six years on 2 May 94. He  was
subsequently promoted to TSgt in cycle 97E6 with a DOR of 1 Jul 98.

With two exceptions,  all  of  his  performance  reports  reflect  the
highest overall ratings  of  either  “9”  (old  system)  or  “5”  (new
system). The applicant’s performance reports and numerous  awards  are
provided at Exhibit B.

During the period in question, the applicant was a  TSgt  assigned  to
the XXXXXXXXXXXXXXXX at Wright-Patterson AFB, OH, as the chief of  the
commander’s support staff.

In Jul 99, the applicant moved into a base housing unit that had  been
occupied by a subsequently retired TSgt. The applicant  and  his  wife
apparently separated in Aug 00 and were divorced on 12 Oct 00.

Towards the end of Oct 00, the retired TSgt contacted Security  Forces
because he believed another person had  used  his  MBNA  America  Bank
credit card. Apparently when he had attempted to close  out  his  MBNA
account, he was advised he could not because he was delinquent in  the
amount of $7,500 from two credit card “access checks” made out to  and
cashed by an individual with the same name  as  the  applicant’s.  The
retiree did not know the applicant. Investigation  disclosed  that  in
Feb 00 MBNA mailed a letter containing two credit card  access  checks
to the  retired  TSgt  at  his  old  address  (then  occupied  by  the
applicant), not knowing the retiree had moved. Someone other than  the
retired TSgt received the checks,  activated  them  through  the  MBNA
website or toll-free number, made them both out to the  applicant  for
$5,500 and $2,000 with the retiree’s name forged on the front of  each
check, and then endorsed them  both  with  the  applicant’s  name  and
cashed them at the Wright-Patterson Credit Union.  The  Ohio  Attorney
General’s  Bureau  of  Criminal  Identification  and   Investigation’s
findings resulted in 100% positive identification that  the  applicant
forged the retiree’s signature and wrote the faces and endorsements on
both checks.  Interviews with the commander alluded to  financial  and
family problems, while the ex-wife  alleged  that  the  applicant  was
financially irresponsible and had written  fraudulent  checks  before.
The Security Forces ROI was completed on 15 Feb 01.

However, in the course of the  above  investigation,  the  applicant’s
misuse and failure to pay his Government Travel  Card  (GTC)  came  to
light. The applicant took several cash advances from ATM machines from
May 00 to Jul 01 at times when  he  was  not  on  TDY.  The  applicant
apparently was the primary Agency  Program  Coordinator  for  the  GTC
program. The Security Forces were contacted  by  the  Wright-Patterson
Credit Union when a personal check written by the applicant on  6  Oct
00 for $4,500 on his Red River Community Federal Credit Union bounced.

On 31 Jul 01, charges were preferred to the applicant for improper use
of his GTC from on or about 25  Sep  00  to  on  or  about  3 Apr  01;
stealing money from the MBNA in  the  amount  of  $2,000  and  $5,500;
falsely, with intent to defraud, knowingly made and  uttered  the  two
checks in the amount of $2,000 and $5,500  which  would,  if  genuine,
apparently operate to the legal harm of another; wrongfully  and  with
intent to defraud uttered a $4,500 check to himself upon the Red River
Federal Community Credit Union  knowing  he  had  insufficient  funds;
failing to pay a debt of approximately $7,600 to Bank of  America  for
charges on his GTC which became due and payable from on or about 1 Dec
00 to on or about 1 Apr 01; and stealing a  letter  addressed  to  the
retired TSgt.

On 11 Aug 01, the applicant remarried.

On 5 Sep 01, an Article 32 investigating officer (IO)  was  appointed.
On 27 Sep 01, the IO recommended that the charges  of  dereliction  of
duty, larceny, forgery, uttering bad checks, failure to pay a debt and
mail theft be referred to a general court-martial.

A general court-martial was convened at Wright-Patterson AFB, OH on 19
Nov 01 and the applicant pled and was found guilty of the following:

      1.  Derelict in his duty by failing to use his GTC for  official
travel purposes only from on or about 25 Sep 00 to on or about  3  Apr
01.

      2.  Stole money in the amount of $2,000 and $5,500, the property
of MBNA America Bank.

      3.  With intent to  defraud  falsely  made  and  uttered  checks
payable to himself in the amount of $2,000 and $5,000.

      4.  With intent to defraud wrongfully  uttered  a  $4,500  check
payable to himself to the Wright-Patterson Credit Union drawn upon the
Red River Federal Community Credit Union with insufficient funds.

      5.  Dishonorably failed to pay a debt of approximately $7,600 to
Bank of America for charges on his GTC which became  due  and  payable
from on or about 1 Dec 00 to on or about 1  Apr  01,  and  stealing  a
letter addressed to the retired TSgt.

The applicant’s sentence was reduction to the grade of  airman  basic,
confinement for 12 months, and a bad conduct discharge (BCD).

The Staff Judge Advocate (SJA) reviewed the case  on  19  Dec  01  and
noted that the maximum sentence that could have been imposed  for  the
offenses was 31 years of confinement, reduction to the lowest enlisted
grade, dishonorable discharge, forfeiture of all  pay  and  allowances
and a fine. Apparently there was  a  pretrial  agreement  wherein  the
convening authority had agreed to approve no confinement in excess  of
15 months. The SJA noted the sentence imposed by the  court  was  less
severe than the sentence limitation  in  the  pretrial  agreement  and
recommended the convening approve the adjudged sentence.

The applicant’s defense did not allege any legal error and  on  28 Dec
01 submitted a petition  for  clemency  to  the  convening  authority.
Counsel noted the applicant’s outstanding 14-year career preceding the
conviction and argued the applicant was dealing  with  extreme  mental
and emotional stress in  his  family  as  he  was  confronted  with  a
difficult divorce. Counsel asked for an early release from confinement
so the applicant could repay the victims of his crimes as part of  his
rehabilitation. Counsel advised the applicant had to provide financial
support to his three-year-old son  and  ex-wife  as  well  as  to  his
current  wife  and  her  three  children.  The  applicant  provided  a
statement blaming his uncharacteristic state of mind  on  his  divorce
proceedings and spiraling  financial  problems.  He  asked  for  early
release so he could support his dependents and pay his debts. Numerous
supporting statements were also submitted.

General Court-Martial Order No.  04,  dated  3  Jan  02  approved  and
executed  the  sentence  except  for  the  BCD.  Upon  completion   of
confinement, the applicant would be required  to  take  leave  pending
completion of appellate review of the  conviction.  The  findings  and
sentence were affirmed on 17 May 02.

On 3 Apr 02, the Air Force Clemency  and  Parole  Board  approved  the
applicant’s request to enter the RTDP.

On 15 Jul 02, the applicant petitioned the US Court of Appeals for the
Armed Forces for a grant of review of the decision of the US Air Force
Court of Criminal Appeals.  His petition was denied on 9 Sep 02.

On 6 Nov 02, the Air Force Clemency and Parole Board reviewed his case
and approved his return to duty. Further, the  execution  of  the  BCD
adjudged on 19 Nov 01 was suspended until 5 Nov  03,  at  which  time,
unless the suspension was sooner vacated, the suspended  part  of  the
sentence would be remitted.

General Court-Martial Order No. 74, dated 2 Jan 03, suspended the  BCD
until 5 Nov 03, at  which  time,  unless  the  suspension  was  sooner
vacated, the suspended part of the sentence would be remitted.

The applicant was approved for return to duty on 13 Jan 03.

On 9 Apr 03, the Air Force Clemency and Parole Board ordered  that  so
much of the sentence as provided for a BCD was  remitted  effective  8
Apr 03.

The applicant is currently serving in the grade of airman with  a  DOR
of 9 Apr 03. According to HQ AFPC/DPPAER, he  extended  his  2 May  94
enlistment twice for a total of 45 months,  giving  him  a  separation
date of 2 Feb 04, when he reaches his high year of tenure (HYT)  based
on his current grade and DOR. The maximum period a member  may  extend
is 48 months.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/JA advises that RTDP  participants  must  develop  a  personal
rehabilitation  plan  while  also  attending  individual   and   group
counseling.  A  treatment  team  comprised  of  a  social  worker,   a
psychologist, a substance abuse/mental health technician,  a  military
training leader, and a chaplain regularly evaluates RTDP participants.
The RTDP does not provide for restoration of rank. AFI 36-2502 governs
eligibility for promotion  and  contains  no  provision  enabling  the
applicant to regain rank lost as a result of  a  criminal  conviction.
Indeed, completion of the RTDP does not even guarantee return to duty;
it merely requires that airmen returned to duty be allowed to serve at
least one year before separation. The applicant should not be restored
to SSgt. He lost his rank as a  result  of  a  sentence  of  a  court-
martial. The RTDP was not created  to  eliminate  all  aspects  of  an
airman’s court-martial; it was created to  give  deserving  airmen  an
opportunity  to  be  rehabilitated,  discharged  honorably   and,   if
otherwise qualified, reenlisted. There is no evidence of an  error  or
injustice in the applicant’s case.  On  the  contrary,  despite  being
convicted of numerous charges of fraud and the theft of  thousands  of
dollars, the applicant was given the opportunity to remit  a  BCD  and
return  to  duty  in  order  to  finish  out  his  current  enlistment
honorably. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPPWB advises that, based on the applicant’s current and  DOR
of 9 Apr 03 for airman, the earliest cycle he would  be  eligible  for
promotion consideration to SSgt would be 07E5. However,  he  currently
has a mandatory date of separation (DOS) of  2  Feb  04  due  to  HYT.
DPPPWB defers to HQ AFPC/JA’s recommendation.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant agrees there is no error or injustice and he is grateful
for the second chance  he  has  been  given.  He  is  asking  for  the
opportunity to continue what he has been doing since he was  18  years
old--serve his country. The Air Force does not owe him anything and he
takes full responsibility for his crimes. However, he feels  he  still
has a lot to offer the Air Force in terms of experience. His superiors
have made him feel he matters and trust him to accomplish the mission.
He promises to serve honorably if given the  opportunity  to  continue
his career.

The applicant provides strong character statements  from  current  and
former supervisors, commanders and others supporting  his  continuance
in the Air Force.

A complete copy of the applicant’s response, with attachments,  is  at
Exhibit F.

The applicant’s former commander from 1997-1999 at Howard AFB provided
a supporting statement requesting  reinstatement  of  the  applicant’s
grade so he can pay back the Air Force’s considerable  investment  and
make this a win-win situation.

The former commander’s letter is 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  warrant
partial relief in an exercise of  clemency.  The  applicant  requested
that he be restored to  the  grade  of  SSgt  so  he  is  eligible  to
reenlist. In his current grade of airman, he reaches his HYT on 2  Feb
04 and must separate. However, if the  applicant  were  reinstated  to
SSgt with his  original  DOR  of  1  May  94,  supplemental  promotion
consideration beginning with cycle 97E6  would  automatically  restore
him to TSgt, since he was already  promoted  to  that  grade  by  that
cycle. He  would  then  become  eligible  for  supplemental  promotion
consideration for MSgt beginning with cycle 00E7. Thus,  granting  his
appeal would essentially remove  the  punishment  of  grade  reduction
imposed by court-martial for his misconduct. The  applicant  used  his
GTC for unofficial charges, uttered a false check, and failed  to  pay
his debts. These were serious offenses in themselves, given  that  the
applicant was apparently the primary Agency  Program  Coordinator  for
the GTC program and significant amounts of  money  were  involved.  He
also uttered two false checks against the MBNA America Bank account of
a retired TSgt. Consequently, we do not believe  granting  the  stated
request is appropriate. Notwithstanding the above, the  applicant  has
completed the rigorous RTDP  and  appears  well  on  his  way  towards
rehabilitation, as evidenced  by  strong  supporting  statements.  The
applicant takes full responsibility for his misconduct and wants  very
much to  continue  in  the  service.  We  also  note  that,  with  two
exceptions, all of his performance reports reflect the highest overall
ratings. He is also the recipient of numerous awards. In  this  light,
we must balance the full brunt of his punishment and total  absolution
against his misconduct and personal renewal. Therefore, after weighing
the evidence presented, we believe a more equitable remedy would be to
restore the applicant to the grade of senior airman (SRA) with  a  DOR
of 9 Apr 03 (the day the Air Force Clemency and Parole  Board  ordered
the BCD remitted), and waive the HYT restrictions to allow him to test
for SSgt. We believe this gives the applicant a realistic  opportunity
to continue his career  and/or  attain  retirement  eligibility  while
being an asset to the Air Force. If they have not done so already, his
rating chain will need to render a current Enlisted Performance Report
(EPR) before the promotion eligibility cutoff date (PECD) of 31 Mar 04
if he is to be considered for SSgt by cycle 04E5, the  earliest  cycle
for which he is eligible with his SRA DOR of 9 Apr 03.  Therefore,  we
recommend the applicant’s records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to the APPLICANT, be corrected to show that:

      a.  On 13 January 2003, competent authority approved his request
for a waiver of his High Year of Tenure  as  an  exception  to  policy
until the first time he is eligible for promotion consideration to the
grade of staff sergeant.

      b.  The applicant was promoted to the  grade  of  senior  airman
effective and with a date of rank of 9 April 2003.

It is also recommended that if the applicant has  not  attained  a  5-
Skill Level by 31 March 2004, the Promotion  Eligibility  Cutoff  Date
(PECD) for promotion cycle 04E5, the requirement be waived.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 10 September 2003 under the provisions of AFI 36-
2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Cheryl Jacobson, Member
                 Ms. Martha Maust, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence relating to AFBCMR  Docket  Number  BC-
2003-01741 was considered:

   Exhibit A.  DD Form 149, dated 15 May 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/JA, dated 5 Jun 03.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 20 Jun 03.
   Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.
   Exhibit F.  Letter, Applicant, undated, w/atchs.
   Exhibit G.  Letter, Former Commander, dated 1 Aug 03.




                                   THOMAS S. MARKIEWICZ
                                   Chair




AFBCMR BC-2003-01741




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:

           a.  On 13 January 2003, competent authority approved his
request for a waiver of his High Year of Tenure as an exception to
policy until the first time he is eligible for promotion consideration
to the grade of staff sergeant.

           b.  The applicant was promoted to the grade of senior
airman effective and with a date of rank of 9 April 2003.

      It is also directed that if the applicant has not attained a 5-
Skill Level by 31 March 2004, the Promotion Eligibility Cutoff Date
(PECD) for promotion cycle 04E5, the requirement be, and hereby is,
waived.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency