RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02855
            INDEX NUMBER:  110.00
      XXXXXXXXXXXXXXXXX      COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Reenlistment Eligibility (RE) code of “4F,” “Five or more days of
lost time during current enlistment” be  changed  to  one  that  will
allow his reentry into the Air Force.

He be granted a pardon for the  offenses  for  which  he  was  court-
martialed.

If the Board cannot pardon him or chooses not to do so,  he  requests
that his FBI record be corrected to reflect that he was only arrested
once, not twice as his record reflects.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant discusses the sequence of events that led to  the  “4F”  RE
code in his records.  He indicates that he was granted  a  waiver  by
his commander allowing him to reenlist but decided to  separate  from
service due to pursuit of his education.  When he later attempted  to
join the Air National Guard, he discovered  that  his  records  still
reflected a “4F” RE code.  He discovered that even though he had been
previously granted a waiver, his decision not to reenlist caused  his
code to revert back to “4F.”

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty on 13 Sep 93.  On 20 Dec 95,  while
in the grade of airman first class, he was tried  by  general  court-
martial for the offense of stealing military property,  in  violation
of Article 121, UCMJ,  and  with  conspiring  to  commit  larceny  in
violation of Article 81, UCMJ.  Prior  to  trial,  applicant  entered
into a pretrial agreement in which he pleaded guilty to  the  lesser-
included offenses of wrongful appropriation and conspiracy to  commit
wrongful appropriation in exchange for a sentence cap  of  14  months
confinement.  The applicant was sentenced to a bad-conduct discharge,
confinement for 5 months, forfeiture of all pay and  allowances,  and
reduction to the grade of airman basic.  On 26  Feb  96,  the  court-
martial convening authority approved the sentence as  adjudged.   The
United States  Air  Force  Court  of  Military  Review  affirmed  the
conviction on    7 May 96 and the United States Court of Appeals  for
the Armed Forces denied applicant’s petition for review.

The applicant completed 5 months of confinement and was accepted into
the Return to Duty Program.  He graduated from the program on 24  Sep
96.  At that time, his bad conduct discharge was suspended  until  31
Oct 97, at which time the BCD would be remitted unless the suspension
was sooner vacated.  The suspension was not vacated and the  BCD  was
automatically remitted.  On 20  Mar  98,  the  AFBCMR  corrected  the
applicant’s records to show that on 17 Mar 98 he executed a  36-month
extension to his 13 Sep 93 enlistment.  This allowed the applicant to
remain on active duty until 14 Jun 01.  On 6 Oct  00,  the  applicant
requested a waiver of his “4F” RE code to allow him  to  reenlist  in
the Air Force.  His commander approved  his  request.   However,  the
applicant never executed the reenlistment and separated from  service
on 14 Jun 01 with a “4F” RE code.  The applicant had a total  of  275
days lost time during the period of his active duty service.

A resume of  the  applicant’s  enlisted  performance  reports  (EPRs)
follows:

      Closeout Date                     Overall Rating

  12 May 95                         5
  03 Apr 97                         5
  03 Apr 98                         5
  03 Apr 99                         5
  03 Apr 00                         5
  03 Apr 01                         4

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFLSA/JAJM states that the AFBCMR is without  authority  to  reverse,
set  aside,  or  otherwise  expunge  the  applicant’s  court  martial
conviction.  The applicant’s bad conduct discharge was  automatically
remitted as of 1 Nov 97 and never executed.   Regarding  his  request
for a pardon, the applicant should  be  advised  of  the  application
process for a Presidential pardon under the provisions of  Title  28,
Code of Federal Regulations, Section 1.1.

As to the applicant’s  request  for  correction  of  his  FBI  arrest
record, they advise that the AFOSI can take  action  to  correct  any
discrepancies.  The applicant’s record should  reflect  that  he  was
charged with larceny and conspiracy to commit larceny but pleaded  to
and  was  convicted  of  wrongful  appropriation  and  conspiracy  to
wrongfully appropriate military property.

The complete evaluation is at Exhibit C.

AFPC/DPPAE recommends denial of the applicant’s request to change his
RE code.  His code of “4F” was correct at the time.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to  the  applicant
on 9 Jan 04 for review and  comment  within  30  days.   To  date,  a
response has not been received.

_________________________________________________________________

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 regarding the applicant’s request
to change his RE code.  We note that his  current  “4F”  RE  code  is
waiverable, provided he meets all other requirements for  enlistment.
We do not find a sufficient basis to award the applicant  a  code  in
the “1” series, which would not  require  a  waiver.   The  applicant
indicates that the Air National turned him down after  they  realized
he had a  “4F”  RE  code.   However,  he  does  not  indicate  if  he
specifically requested a waiver  of  the  code.   Therefore,  in  the
absence of evidence to the contrary, we find no compelling  basis  to
recommend granting this part of the application.

4.  In regard to the applicant’s request for a pardon  or  correction
of his FBI arrest record, the Board  agrees  with  AFLSA/JAJM’s  view
that the Board lacks authority to grant these requests.  We recommend
that the applicant consider the channels  indicated  in  AFLSA/JAJM’s
advisory to resolve these issues.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

The applicant be notified that the evidence presented  regarding  his
request  to  change  his  Reenlistment  Eligibility  code   did   not
demonstrate the existence of material error or injustice;  that  this
portion of 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 applicant be notified that  the  Board  lacks  the  authority  to
consider his requests for a pardon and correction of his  FBI  arrest
record.

_________________________________________________________________

The following members of the Board considered Docket Number  BC-2003-
02855 in Executive Session on 10 March 2004, under the provisions  of
AFI 36-2603:

      Ms. Brenda L. Romine, Panel Chair
      Ms. Ann-Cecile M. McDermott, Member
      Ms. Kathleen F. Graham, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Aug 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 22 Oct 03.
    Exhibit D.  Memorandum, AFPC/DPPAE, dated 12 Dec 03.
    Exhibit E.  Letter, SAF/MRBR, dated 9 Jan 04.




                                   BRENDA L. ROMINE
                                   Panel Chair