RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02003
            INDEX CODE:  131.04, 131.05
            COUNSEL:  NONE

            HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His date of rank (DOR) to airman (E-2) be changed to reflect 23 Oct  01  and
his DOR to airman first class (E-3) be changed to reflect 23 Aug 02.

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APPLICANT CONTENDS THAT:

The regulation governing the Return-to-Duty Program (RTDP) only  mentions  a
suspension to any unexecuted part of  sentence.   He  was  unjustly  put  on
probation and not allowed promotion to the  rank  of  E-2  and  E-3  at  the
normal  intervals.   He  provided  a  statement  submitted  by  his  current
commander in  which  he  contends  that  the  applicant's  former  commander
erroneously chose  to  withhold  his  promotions  because  of  a  letter  he
received indicating he could not test or be promoted.

In support of his request, applicant provided his commander's statement  and
an extract of AFI 31-205, The Air Force Corrections  System.   His  complete
submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The  applicant  was  found  guilty   by   general   court-martial   of   two
specifications of stealing property from the  government  and  sentenced  to
confinement for 12 months, a bad conduct discharge, reduction to  the  grade
of airman basic, forfeiture of  all  pay  and  allowances,  and  a  fine  of
$7,200.  On 25 Aug 00, he entered the RTDP and graduated on 13 Mar  01.   On
23 Apr 01, the Air Force Clemency and Parole Board approved  his  return  to
duty and on 23 Apr 02 that  part  of  his  sentence  directing  bad  conduct
discharge was remitted.

On 27 Aug 02, the applicant's request that he be reinstated to the grade  of
staff sergeant was considered and  partially  granted  by  the  Board.   The
Board agreed with the suggested alternative presented by the Air  Force  and
granted a high-year-of-tenure (HYT) waiver changing his  HYT  from  November
2002 to December 2005, thus allowing him the opportunity to  earn  back  the
grades he lost.  In a reconsideration of his request,  by  a  majority  vote
the Board promoted the applicant from the grade of airman first class  (E-2)
to the grade of senior airman  (E-4)  effective  1  Sep  02.   He  has  been
subsequently selected for and promoted  to  the  grade  of  staff  sergeant,
having assumed that grade effective and with a date of rank of 1 Jun 04.

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AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial.  DPPPWB states in  accordance  with  AFI  36-
2502, Airman Promotion Program, table 1.1, rule 4,  he  was  ineligible  for
promotion due to the suspended  punishment  imposed  by  the  court-martial.
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.  The DPPPWB evaluation is at Exhibit C.

AFPC/JA recommends denial.  JA states his current commander is correct  that
AFI 35-205 does not prohibit Airmen from promotion consideration  when  they
are returned to  duty  after  completing  the  RTDP.   However,  AFI  31-205
acknowledges that  candidates  who  are  returned  to  duty  will  have  the
unexecuted part  of  any  sentence  suspended  for  up  to  1  year,  or  as
determined by the AFC&PB.  The suspended punishment, unless sooner  vacated,
will be remitted at the end  of  the  suspension  period.   The  applicant's
commander overlooked that the applicant was facing the  suspended  BCD  when
he  was  returned  to  duty.   AFI  36-2502,  makes  Airmen  ineligible  for
promotion who have "been convicted by  court-martial,  or  [are]  undergoing
punishment/suspended punishment imposed  by  court-martial."   Consequently,
he would have been ineligible for promotion  until  his  suspended  BCD  was
remitted in February  2002  by  order  of  the  AFC&PB.  The  applicant  was
properly denied promotion when he was returned to  active  duty  because  he
was facing a suspended BCD, not because he was on "probation."   The  AFBCMR
previously granted him relief on two occasions.  Both of  these  orders  put
him in the position where he was able to  ultimately  achieve  promotion  to
staff sergeant-the rank he held before he was convicted.  The JA  evaluation
is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

His return to duty and  suspended  punishment  was  not  imposed  by  court-
martial, but ordered by the AFC&PB.  JA states that he was  properly  denied
promotion and not on probation.  He  provided  a  letter  initiated  by  his
first sergeant that states otherwise.  When he questioned the guidance  that
led to the promotion withhold action he was told he  was  on  probation  for
one year because of the RTDP.  AFI 31-205 does not  even  mention  the  word
"probation" when it comes to the RTDP.   This  interpretation  led  to  what
applicant believes is a false letter prepared  by  the  first  sergeant  and
signed by the commander.  His complete  response,  with  attachment,  is  at
Exhibit F.

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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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not been the victim of an  error  or  injustice.   In
the absence of evidence to the contrary, we  find  no  compelling  basis  to
recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of material error  or  injustice;  that  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.

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The following members of the Board considered AFBCMR Docket Number  BC-2004-
02003 in Executive Session on 9 Dec 04, under  the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Dorothy P. Loeb, Member
      Ms. Carolyn B. Willis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Jun 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPPWB, dated 12 Jul 04.
    Exhibit D.  Letter, AFPC/JA, dated 12 Aug 04.
    Exhibit E.  Letter, SAF/MRBR, dated 20 Aug 04.
    Exhibit F.  Letter, Applicant, dated 20 Oct 04.




                                   THOMAS S. MARKIEWICZ
                                   Chair