RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  BC-2004-01781
                                  INDEX CODE 131.00, 105.01, 100.06
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His rank of senior airman (SRA) be restored so that  he  may  continue
his military career, having  completed  the  Return  to  Duty  Program
(RTDP).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His current goals and ambitions are to do whatever he can to help  the
Air Force; he wants nothing more than  to  succeed  at  everything  he
does. The RTDP, coupled with his experiences at Offutt AFB during  the
last  six  months,  has  shown  him  that  his  improper  conduct  was
detrimental to both the Air Force and himself in  more  ways  than  he
thought possible. Based on what  he  has  already  accomplished  since
completing the program, he can only imagine where he  would  be  today
if, at the start of his career, he had the same drive and mental state
he has now. With this second chance, he will epitomize Air Force  core
values for many years to come. His goals are hindered by  his  current
rank of airman; therefore, he asks for reinstatement of  his  previous
rank of SRA so he can continue to grow as an integral part of the  Air
Force.

The applicant provides supporting statements from  the  HQ  Air  Force
Weather Agency (AFWA) commander, the  squadron  commander,  the  first
sergeant, and supervisors who fully support his request for the  grade
of SRA and retention  in  the  Air  Force.  The  applicant’s  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The RTDP  offers  selected  court-martialed  enlisted  personnel  with
exceptional potential the opportunity to be returned  to  active  duty
and have their punitive discharge, if adjudged, remitted. The  program
does not provide for promotion or the restoration of rank.

The applicant enlisted in the Regular Air Force on 19 May  99  in  the
grade of airman basic for a period of six years. He  was  assigned  to
the HQ Standard Systems Group at Maxwell AFB, AL, as a civil  engineer
computer programmer.  According to HQ AFPC/DPPPWB, he was promoted  to
the grade of airman first class (A1C) on 9 Jul 99.

His Enlisted Performance Report (EPR) for the period 19 May 99 through
15 Jan 01 had an overall rating of 5, the highest level, and  all  his
performance factors were “firewalled.”

On 17 Oct 01, the 42 ABW commander appointed an investigating  officer
(IO) to  examine  allegations  against  the  applicant  pertaining  to
distribution/use/possession of drugs during a period of 1 Jul 00 -  28
Feb 01.

[NOTE:  According to HQ AFPC/DPPPWB, the applicant was promoted to SRA
on 9 Nov 01.   However,  this  promotion  may  have  been  “red-lined”
pending the investigation because, other than the SRA  promotion  date
in the personnel  data  system  (PDS),  there  is  no  record  of  the
promotion.  The documents pertaining to the applicant identify him  as
an A1C.  In a telephone  conversation  on  29 Nov  04,  the  applicant
indicated his promotion was “red-lined” but “not officially” until his
trial in Feb 02.]

On 30 Oct 01, the applicant waived his right to an Article 32 hearing.
 However, on 5 Nov 01, the chief of military justice requested the  IO
reschedule the Article 32 hearing despite  the  waiver  and  the  area
defense counsel’s  (ADC)  objections.   The  Article  32  hearing  was
conducted on 4 Dec 01.

The IO’s report (Exhibit B), dated 6 Dec 01, recommended  referring  a
charge  and  specifications  against  the   applicant   for   wrongful
distribution, possession, and use  of  Ecstasy  and  wrongful  use  of
marijuana.

Legal review on 26 Dec 01 by the Air University Staff  Judge  Advocate
(AU/JA) found the evidence contained in the IO’s report warranted  the
charge and specifications.   The  AU/JA  recommended  the  charge  and
specifications be referred to general court-martial.  On  30  Dec  01,
the case was referred to trial by general court-martial for violations
of  Article  112a   (Controlled   Substances)   with   the   following
specifications:

       Specification  1:  Wrongful  distribution  of  some  amount  of
Ecstasy on divers occasions between, on, or about 1 Jul 00 and  on  or
about 28 Feb 01.

      Specification 2:  Wrongful use of marijuana on divers  occasions
between, on, or about 15 Jun 00 and on or about 1 Nov 00.

      Specification 3:  Wrongful possession of some amount of  Ecstasy
between, on, or about 20 Jan 01 and on or about 10 Feb 01.

      Specification 4:  Wrongful use of Ecstasy on or about 15 Jul 00.

On 19 Jan 02,  after  consulting  counsel,  the  applicant  offered  a
pretrial agreement to plead guilty to distribution of Ecstasy, but not
to plead guilty to  possession  and  use  of  Ecstasy  or  to  use  of
marijuana, in exchange for a period of confinement no longer than four
months.  However, his offer was disapproved on 23 Jan 02.

On 11 Feb 02, the applicant pled guilty to a  single  distribution  of
Ecstasy and wrongful possession of Ecstasy; pled not guilty to  divers
distribution of Ecstasy, wrongful use of Ecstasy, and  divers  use  of
marijuana.  The trial judge accepted the applicant’s  guilty  plea  on
the possession of Ecstasy specification, but the  divers  distribution
of Ecstasy specification, the use of Ecstasy  specification,  and  the
use of marijuana specification were litigated before a panel  of  five
officers.

The primary evidence against the applicant consisted of  testimony  by
three  witnesses  and  his  admission  to  possession   and   one-time
distribution of Ecstasy.  On 12 Feb 02, the panel  members  found  the
applicant guilty of the following:

      -- Wrongful distribution of Ecstasy on or about 2 Feb 01.

      -- Wrongful use of marijuana on divers occasions between, on, or
about 15 Jun and 1 Nov 00.

      -- Wrongful possession of Ecstasy between 20 Jan and 10 Feb 01.

      -- Wrongful use of Ecstasy on or about 15 Jul 00.

He was sentenced to reduction from A1C to  airman  basic,  hard  labor
without confinement for 30 days, and a bad  conduct  discharge  (BCD).
The sentence was adjudged, but  the  BCD  was  suspended  pending  the
appellate process.  Pursuant to the  Air  Force  Clemency  and  Parole
Board, on 8 Apr 03, the BCD was suspended until 7  Apr  04,  at  which
time, unless sooner vacated, the discharge would be remitted.

On 25 Jun and 9 Jul 02, AU/JA recommended the AU commander approve the
findings  and  sentence  as  adjudged.   The  applicant  and  his  ADC
submitted  matters  for  clemency  consideration,  and  requested  the
applicant be accepted into the RTDP.

The applicant was accepted into the RTDP in Aug  02.  He  successfully
completed the program in Jan 03 and was returned to duty in the  grade
of airman basic by the Air Force Clemency and Parole Board in Apr 03.

The applicant is currently assigned to the AFWA at Offutt AFB, NE, and
serving in the grade of airman effective and with a date of rank (DOR)
of 8 Apr 04, the day after the BCD was remitted.

According to HQ AFPC/DPPPWB, if no ineligibility condition exists  and
his commander recommends him for promotion and reenlistment, which  he
has, the applicant will be eligible for promotion to A1C on 8  Feb  05
and SRA on 8 Jun 07.  He currently has a date of separation  (DOS)  of
18 May 05, unless  his  commander  recommends  him  for  reenlistment.
According to a 29 Jul 04 HQ AFPC/DPPPWB email to the AFBCMR Staff, the
applicant’s current high year of tenure (HYT) date is 19 May 2011.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPWB contends 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. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/JA advises by footnote  that,  according  to  the  applicant’s
records, he held the rank of A1C at the  time  of  his  court-martial.
They presume, therefore, the applicant is  seeking  promotion,  rather
than reinstatement, of prior rank.  [See Note in Statement of  Facts.]
As the applicant has failed to present relevant evidence of any  error
or injustice warranting relief, denial is recommended.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 9 Jul 04 for review and comment within 30  days.   As  of
this date, this office has received no response.

_________________________________________________________________

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 injustice to warrant partial relief.  In reaching our
decision, we do not by any means condone or minimize  the  seriousness
of the applicant’s misconduct, which resulted in his court-martial and
reduction in grade.  The applicant was found guilty of wrongful use of
marijuana and wrongful possession of Ecstasy on several occasions.  He
also was found guilty of wrongful distribution  and  use  of  Ecstasy.
However, the fact  that  the  court  did  not  impose  confinement  is
noteworthy.  Instead, it was  the  applicant  who  voluntarily  placed
himself in the brig after he was approved to enter the rigorous  RTDP.
According to HQ AFPC/DPPPWB, the applicant was originally promoted  to
SRA on 9 Nov 01 and, at the rate he is going,  will  not  regain  that
grade until 8 Jun 07.  We  find  this  an  extraordinarily  protracted
process. The applicant takes responsibility  for  his  misconduct  and
wants very much to continue in the service.  Further, he appears  well
on his way towards rehabilitation,  as  evidenced  by  his  superiors’
strong supporting statements and desire to restore him.  Given the Air
Force’s investment in this individual, and his real potential to be  a
leader and a mentor to new recruits, we must balance the full brunt of
his  punishment  and  total  absolution  against  his  misconduct  and
personal renewal.  We do  not  intend  to  whitewash  the  applicant’s
misbehavior to the extent of reinstating his rank  of  SRA--he  should
earn this grade  back.   Rather,  we  believe  a  more  equitable  and
mutually beneficial remedy to the applicant and the Air Force would be
to waive his reenlistment obstacles and accelerate  his  promotion  to
SRA by promoting him to A1C with a DOR of 19  Sep  04.   However,  the
effective date would be the date this Board convened.   In  this  way,
should he maintain his present level of  dedication  and  performance,
the applicant has a realistic  opportunity  to  continue  his  career.
Furthermore, the service can fully utilize his capabilities at a  time
when so  many  inexperienced  troops  need  guidance  and  leadership.
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 APPLICANT, be corrected to show that he was promoted  to
the grade of airman first class, with a date of rank of 19 September
2004 and an effective date  of  30  November  2004,  that  competent
authority approved a waiver of the grade requirement and Career  Job
Reservation to obtain eligibility for reenlistment  in  the  Regular
Air Force, and that he is authorized to reenlist in the Regular  Air
Force for a period of four years at the expiration  of  his  current
term of service, as an exception to policy.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 November 2004 under the provisions of AFI  36-
2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Janet I. Hassan, Member
                 Mr. Patrick C. Daugherty, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence relating to AFBCMR  Docket  Number  BC-
2004-01781 was considered:

   Exhibit A.  DD Form 149, dated 18 May 04, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPWB, dated 15 Jun 04.
   Exhibit D.  Letter, HQ AFPC/JA, dated 30 Jun 04.
   Exhibit E.  Letter, SAF/MRBR, dated 9 Jul 04.





                                   THOMAS S. MARKIEWICZ
                                   Chair






AFBCMR BC-2004-01781




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 he was promoted to
the grade of airman first class, with a date of rank of 19 September
2004 and an effective date of 30 November 2004, that competent
authority approved a waiver of the grade requirement and Career Job
Reservation to obtain eligibility for reenlistment in the Regular Air
Force, and that he is authorized to reenlist in the Regular Air Force
for a period of four years at the expiration of his current term of
service, as an exception to policy.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency