RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00397
            INDEX CODE:  133.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO



_________________________________________________________________

APPLICANT REQUESTS THAT:

His grade of airman first class (E-3) be reinstated, with his original
date of rank (DOR) of 9 October 2000, and consideration for  promotion
to the grade of senior airman (E-4).
_________________________________________________________________

APPLICANT CONTENDS THAT:

Since he successfully completed the Return to Duty Program (RTDP),  he
should be restored to his former grade.

In support of his request, the applicant submits a copy of his  letter
requesting early release from RTDP,  copies  of  numerous  letters  of
recommendation, AF Form  77  (Supplemental  Evaluation  Sheet)  and  a
letter of appreciation.  The  applicant’s  complete  submission,  with
attachments, is at Exhibit A.
_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System (MilPDS)
reveals the applicant’s Total Active  Federal  Military  Service  Date
(TAFMSD) as 16 August 1999.

The applicant is currently serving on active  duty  in  the  grade  of
airman (E-2), with an effective date and date  of  rank  of  2 January
2004.  On 30 December 2003, the applicant placed a second request  for
an extension of his current enlistment (all extensions to his  current
enlistment total 19 months).  His request  was  approved  on  9  March
2004, which changed his date of separation (DOS) of 2 January 2004  to
2 January 2005, with a reenlistment eligibility (RE) code of  4E.   RE
code 4E is defined as “Grade is airman first class or below and airman
completed 31 or more months, if a  first-term  airman;  or,  grade  is
airman first class or below and the airman is a second-term or  career
airman.”  The applicant has an established date of separation (DOS) of
2 January 2005.  His high year tenure (HYT) date is 16 August 2011.

On 21 March 2001, the applicant, while serving in the grade of  airman
first class (E-3), was tried by a special  court-martial  at  Lackland
AFB, TX.  He pled guilty to one specification of cocaine use  and  one
specification of marijuana use.  On 21 March 2002, the  applicant  was
sentenced to a bad conduct discharge, reduction to the grade  of  E-1,
forfeiture of $600.00 pay per month for four  months  and  confinement
for 100 days.  His sentence was  approved  and,  except  for  the  bad
conduct   discharge,   was   executed.    The   applicant    requested
consideration for RTDP and, on 26 April 2002, the convening  authority
approved the sentence and directed his entry into the program.  On  11
March 2003, the United States Air  Force  Court  of  Criminal  Appeals
found no error prejudicial to the substantial rights of the  applicant
and approved the findings and sentence.  The applicant’s petition  for
review by the Court of Appeals for the Armed Forces was denied  on  16
July 2003.

On 3 January 2003, the Air Force Clemency and  Parole  Board  approved
applicant  for  return  to  duty  effective  as  soon   as   possible.
Additionally, the execution of the bad  conduct  discharge  (BCD)  was
suspended until 2 January 2004, at which time, unless  the  suspension
was sooner vacated, the  suspended  part  of  the  sentence  would  be
remitted.  Special Court-Martial Order No.  9,  dated  4  March  2004,
reveals the BCD was remitted, effective 18 December 2003, by action of
the Air Force Clemency and Parole Board.

Applicant's Enlisted Performance Report (EPR)  profile  for  the  last
four reporting periods follows:

            Period Ending    Evaluation

              8 Feb 01 5 - Immediate Promotion
             29 Mar 02 2 - Not Recommended at this Time
             18 Jun 03 5
             18 Jun 04 5
_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states that the applicant  is  not  contending  a  specific
error has occurred which requires the correction of his  court-martial
record and there is no indication in the record of such an error.  The
applicant successfully completed the RTDP.  From all  indications,  he
has been successfully rehabilitated and performed well.  Thus, as  the
RTDP allows, his bad conduct discharge was  suspended  and  ultimately
remitted.  The RTDP does not provide for reinstatement of rank.  Based
on his grade and time in service, the applicant will most  likely  not
be eligible to reenlist when his enlistment expires in  January  2005.
The applicant provides compelling rationale  to  grant  some  form  of
relief.  While applicant’s  record  has  been  meritorious  since  his
completion of RTDP, action affecting his sentence is not  appropriate.
Restoration to the grade held at the time of the  court-martial,  with
original DOR, would provide a  windfall  in  terms  of  back  pay  and
seniority that  is  not  warranted.   However,  applicant’s  continued
superior performance, exceptional technical skill, leadership and “can
do” attitude described in his submissions serves as a sufficient basis
for his commander to conclude that it is in the best interest  of  the
Air Force to allow the applicant the opportunity  to  progress  beyond
airman basic.  Accordingly, the Board should consider whether to grant
the applicant relief as to  either  high  year  tenure  or  enlistment
period.  The AFLSA/JAJM evaluation is at Exhibit C.


HQ AFPC/DPPPWB recommends the application be  denied.   DPPPWB  states
that the RTDP provides airmen an opportunity to be returned to  active
duty and have a punitive discharge remitted; it does not  provide  for
restoration of rank.  Based on the remittance of the BCD, the Military
Personnel Data System (MilPDS) has been updated to reflect applicant’s
grade as airman (E-2), with an effective date and date of  rank  (DOR)
of 2 January 2004.  He will be eligible for promotion to airman  first
class (E-3) on 2 November 2004, provided no  ineligibility  conditions
exist and he is recommended by his commander, and senior airman  (E-4)
on 2 July 2006, provided he is recommended for reenlistment.   The  HQ
AFPC/DPPPWB evaluation is at Exhibit D.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on  25
June 2004 for review and response.  As of this date, no  response  has
been received by this office (Exhibit E).
_________________________________________________________________

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 demonstrate the
existence of an injustice warranting  corrective  action.   Since  the
applicant was found guilty of the use of a  controlled  substance,  we
are not inclined to recommend corrective action that would  result  in
his original DOR being restored.  We are  aware  that  the  Air  Force
Return to Duty Program (RTDP) is extremely competitive and  relatively
few members such as the  applicant  are  approved  for  entry  in  the
program.  The applicant successfully completed this  program  and  was
then selected by the  Air  Force  Clemency  and  Parole  Board  to  be
returned  to  duty  and  his  bad  conduct  discharge  was  ultimately
remitted, effective 18 December  2003.   Since  his  return  to  duty,
applicant has performed well as evidenced by the letters submitted  in
support of his appeal and his recent performance reports.  In view  of
his successful completion of RTDP, his outstanding  duty  performance,
and the support of his superiors since returning to duty,  we  believe
some  form  of  relief  is  warranted.   In  this  respect,   we   are
sufficiently  persuaded  that  the  applicant   should   be   afforded
appropriate promotion relief, which would result  in  his  eligibility
for promotion consideration to the grade of senior airman (E-4)  prior
to his established Date of Separation (DOS).  Therefore, in  order  to
meet the time in grade (TIG) criteria of 20 months  for  promotion  to
the grade of E-4 prior to the applicant’s DOS of  2 January  2005,  we
believe proper and fitting relief would be to promote the applicant to
the grade of airman first class (E-3)  earlier  than  his  established
eligibility date of 2 November 2004.   Hence,  subtracting  20  months
from 2 January 2005 would be 2 May 2003.  However,  by  promoting  the
applicant on 2 April 2003, as an exception to  policy,  his  commander
would have  30  days  before  the  applicant’s  DOS  to  consider  and
select/nonselect him for promotion.  In  view  of  the  foregoing,  we
recommend the applicant’s records be corrected to the extent indicated
below.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that, as  an  exception  to
policy, he was promoted to the grade  of  airman  first  class  (E-3),
effective and with a date of rank of 2 April 2003.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 11 August 2004, under the provisions of  AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Chair
                  Ms. Martha J. Evans, Member
              Ms. Martha A. Maust, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary  evidence  was  considered  in  connection  with
AFBCMR Docket Number BC-2004-00397.

   Exhibit A.  DD Form 149, dated 26 Jan 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 12 Apr 04.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 10 Jun o4.
   Exhibit E.  Letter, SAF/MRBR, dated 25 Jun 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair



AFBCMR BC-2004-00397




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, as an exception
to policy, he was promoted to the grade of airman first class (E-3),
effective and with a date of rank of 2 April 2003.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency