RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBERS:  BC-2004-02022
                                       INDEX CODE:  126.04
      XXXXXXXXXXXXXXXXXXXXXXX           COUNSEL:  JEFFREY E. CHOSTNER

      XXXXXXXXXXXXX                          HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  28 Dec 05


_________________________________________________________________

APPLICANT REQUESTS THAT:

His Article 15, Uniformed Code of Military  Justice  (UCMJ),  imposed  on  3
February 2000 be set aside and his Enlisted  Performance  Report  (EPR)  for
the period 4 August 2002  through  30 November  2003  be  removed  from  his
records.  Any regulatory bar preventing his reenlistment be removed  and  he
be reinstated in the Air Force Reserve, preferably at Westover  Air  Reserve
Base, MA, or; to  his  previous  position  at  Peterson,  AFB,  CO.   He  be
credited for all lost time and pay since being denied his reenlistment  from
June 2003 to the present.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was improperly recalled to active duty and subjected to military  justice
action, resulting in an improper Article 15, EPR, and  selection  record;  a
“bad year” for his Reserve status; and, his unit’s refusal to reenlist  him.


In support of his application, the applicant provides a statement  from  his
counsel; and copies of his court-martial  charge  and  specification  sheet;
commander’s memo to withdraw the charges; six-month  extension;  excerpt  of
AFI  36-2612;  Article  15;  documentation  regarding  his  Article  15  and
subsequent  appeal;  referral  EPR;   and   documentation   concerning   his
involuntary  extension.    The   applicant’s   complete   submission,   with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 7 August 1985, the applicant enlisted in the Air  Force  Reserve  at  the
age of 22 in the grade of airman (E-2) for a period of six  years.   He  was
progressively promoted to the rank of master sergeant  (E-7)  effective  and
with a date of rank of 1 January  2001.   He  received  four  EPRs  for  the
period 7 August 1985 through 30 November 2003 with ratings of 3, 5,  2,  and
1.

On 13 May 2003, the applicant’s enlistment was  involuntarily  extended  for
six months “for the purpose of administrative action.”  On  4  August  2003,
the applicant was charged with five specifications  of  stealing  Air  Force
property in violation of  Article  121,  United  Code  of  Military  Justice
(UCMJ).  On 17 November  2003,  the  court-martial  authority  withdrew  the
charge and specifications.

On 18  November  2003,  the  applicant’s  commander  offered  the  applicant
nonjudicial punishment under  Article  15,  UCMJ,  for  larceny  of  certain
military property between 1 August  1998  and  11 July  2002,  specifically,
uniforms, a portable back-up power supply  system,  and  a  magazine  for  a
Beretta 9mm handgun.  The applicant waived his right to a  trial  by  court-
martial and accepted  nonjudicial  punishment  proceedings.   The  applicant
consulted with counsel, made a personal  appearance  before  the  commander,
and submitted a written presentation of matters in defense, mitigation,  and
extenuation.  After considering all of the  evidence,  the  commander  found
that the applicant committed the offenses relating to the  uniform  clothing
and the power-source system but did not commit the offense relating  to  the
9mm magazine.  The commander imposed punishment of a reduction to the  grade
of  technical  sergeant  (E-6).   The  applicant  appealed  the  nonjudicial
punishment, and the appeal was denied on 24 November 2003.

On 26 November 2003, the applicant  was  not  recommended  for  reenlistment
citing his Article 15 as the reason.  The applicant’s  enlistment  extension
was terminated effective 15 December 2003.  On 9 February 2004,  the  Deputy
Director of Military Justice for the Air Force  Reserve  Command  (AFRC/JAJ)
determined the extension  of  the  applicant’s  enlistment  was  not  legal.
AFRC/JAJ’s rationale  was  that  although  the  provisions  of  AFI  36-2612
authorize an involuntary extension of enlistment for  a  court-martial  that
is begun while the  member  is  subject  to  the  UCMJ,  in  this  case,  no
significant step towards a  court-martial  was  taken  during  the  original
enlistment period.   On  26  May  2004,  AFRC  Military  Personnel  Division
instructed the applicant’s unit to remove from the applicant’s  records  all
paperwork generated after the original expiration date  of  the  applicant’s
enlistment (15 June 2003).

The applicant was released from the Air Force Reserve effective 15  December
2003 for expiration of term  of  service.   As  of  6 August  2003,  he  was
credited with 17 years of satisfactory Federal military service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends the applicant’s Article 15 be set aside and  that  all
references to it be removed from the applicant’s  personnel  records.   JAJM
states that since the set aside will result in  reinstatement  of  rank  and
other personnel actions, including the  opportunity  of  reenlistment,  they
defer to the personnel community to  make  recommendations  regarding  those
actions.  The AFLSA/JAJM evaluation is at Exhibit C.

AFRC/DPM recommends the applicant’s record be corrected to reflect  a  total
award of 86 Inactive Duty Training (IDT) points, 12 active duty  points  and
pay in the grade of master sergeant  (E-7)  thus  giving  him  the  pay  and
points needed for additional good  years  towards  retirement.   DPM  states
they are not the appropriate office to address the applicant’s  request  for
reinstatement to his former unit.  The DPM evaluations are  at  Exhibits  D,
E, and F

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  requests  he  be  reinstated  in  the  Air  Force  Reserve,
preferably to Westover Air Reserve Base, Massachusetts.  In  addition,  he
requests credit for all lost time and pay since being denied  reenlistment
from June 2003 to present.  The applicant’s rebuttal, with attachments, is
at Exhibit J and his counsel’s statement is at Exhibit K.

_________________________________________________________________

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 error or injustice in regard to the applicant’s requests  to
be reinstated in the  Air  Force  Reserve,  receive  pay  and  participation
points since his separation, his Article 15 imposed on 3 February  2000  and
his EPR for the period 4 August 2002 through 30 November 2003  be  expunged.
We note the advisory opinion by JAJM that the applicant’s commander  had  no
authority to retain the applicant on  active  duty  once  the  court-martial
convening authority  withdrew  the  charge  and  specification  against  the
applicant.  Therefore, the commander had no military jurisdiction  over  the
applicant at the time of imposing nonjudicial punishment.   Accordingly,  we
concur with JAJM’s recommendation to  set  aside  the  Article  15  and  all
references  to  it  be  removed  from  the  applicant’s  personnel  records.
Because of the Article 15 set aside, we agree the applicant’s  EPR  for  the
period 4 August 2002 through 30 November 2003 should  be  removed  from  his
records;  his  reenlistment  eligibility  code  should  be  changed  to   5A
(eligible to reenlist) and his records be corrected to  show  he  reenlisted
in the Air Force Reserve effective 16 June 2003 for a period of  six  years;
he be reinstated to the rank of master sergeant with a date  of  rank  of  1
January  2001;  and  his  records  be  corrected   to   reflect   sufficient
participation points for retention/retirement (R/R) years 7  August  2002  -
6 August 2003 and 7  August  2003  –  6 August  2004  to  be  credited  with
satisfactory years  of  Federal  service.   We  feel  the  applicant  should
receive sufficient participation points for a good retirement year  for  the
period 7 August 2004 to 27 April 2005 since  reinstatement  into  an  active
Reserve position may not occur before expiration of his  current  R/R  year.
In view of the foregoing, it is our opinion  that  the  applicant’s  records
should be corrected as indicated below.

4.  In regard to the applicant’s request to  be  reinstated  to  his  former
unit and position, based on the period of time that  has  lapsed  since  his
separation and the problems he incurred while assigned to his  former  unit,
it would not be in the best interest of  the  applicant  or  the  Air  Force
Reserve to place him back in this environment.  Therefore, we  believe  that
the Air Force Reserve is in the best position to  determine  an  appropriate
assignment.

5.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_______________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.  The nonjudicial punishment under  the  provision  of  Article  15,
Uniform Code of Military  Justice,  imposed  on  18 November  2003,  be  and
hereby is, declared void and expunged from  his  records,  and  all  rights,
privileges and property of which he may have been deprived be restored.


      b.  The Air Force Form  910,  Enlisted  Performance  Report  (AB  thru
TSGT), rendered for the period 4 August 2002  through  30 November  2003  be
declared void and expunged from his records.


      c.  On 16 December 2003, he reenlisted in the Air Force Reserve for  a
period of six years and  assigned  to  such  a  position  for  which  he  is
qualified on the earliest practical date.


      d.  During the retention/retirement year 7  August  2002  to  6 August
2003, he was awarded an additional 12 paid active duty points  and  22  paid
inactive duty points.


      e.  During the retention/retirement year 7  August  2003  to  6 August
2004, he was awarded 40 paid inactive duty points.


      f.  During the period 7 August 2004 to 27 April 2005, he  was  awarded
14 paid active duty points and 24 paid inactive duty points.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 27 April 2005 under the provisions of AFI 36-2603:

                 MS. B. J. White-Olson, Panel Chair
                 Mr. Jay H. Jordan, Member
                 Mr. Albert C. Ellett, Member

By a majority vote, the Board voted to correct the  record  as  recommended.
Ms. White-Olson voted to grant all requests except for back pay,  which  she
voted to deny; however, she chose not to  submit  a  minority  report.   The
following documentary evidence was  considered  in  connection  with  AFBCMR
Docket Number BC-2004-02022:

      Exhibit A.  DD Form 149, dated 21 Jun 04, w/ atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFLSA/JAJM, dated 10 Sep 04.
      Exhibit D.  Letter, AFRC/DPM, dated 14 Feb 05.
      Exhibit E.  Letter, AFRC/DPM, dated 21 Oct 04.
      Exhibit F.  Letter, AFRC/DPM, dated 26 May 04.
      Exhibit G.  Letter, SAF/MRBR, dated 25 Feb 05.
      Exhibit H.  Letter, AFBCMR, dated 17 Nov 04.
      Exhibit I.  Letter, SAF/MRBR, dated 29 Oct 04.
      Exhibit J.  Applicant’s Letter, dated 10 Nov 04, w/atchs.
      Exhibit K.  Counsel’s Rebuttal, dated 19 Nov 04, w/atchs.




                                                   B. J. WHITE-OLSON
                                                   Panel Chair


AFBCMR BC-2004-02022




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 XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, be corrected to show that

           a.  The nonjudicial punishment under the provision of Article
15, Uniform Code of Military Justice, imposed on 18 November 2003, be and
hereby is, declared void and expunged from his records, and all rights,
privileges and property of which he may have been deprived be restored.


           b.  The Enlisted Performance Report for the period 4 August 2002
through 30 November 2003 be and hereby is, declared void and expunged from
his records.


           c.  On 16 December 2003, he reenlisted in the Air Force  Reserve
for a period of six years and assigned to such a position for  which  he  is
qualified on the earliest practical date.


           d.  During  the  retention/retirement  year  7  August  2002  to
6 August 2003, he was awarded an additional 12 paid active duty  points  and
22 paid inactive duty points.


           e.  During  the  retention/retirement  year  7  August  2003  to
6 August 2004, he was awarded 40 paid inactive duty points.


           f.  During the period 7 August 2004 to  27  April  2005  he  was
awarded 14 paid active duty points and 24 paid inactive duty points.





  JOE G. LINEBERGER

  Director

  Air Force Review Boards Agency