RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03396
            INDEX CODE:  131.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  6 May 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

She be promoted to the grade of senior airman.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Since her conviction by special court-martial, she  has  been  working
hard to regain the trust of the Air Force.   Upon  completion  of  the
sentencing portion of her trial, she was recommended for entrance into
the Return to Duty Program (RTDP).  Upon completion of the  RTDP,  she
took the tools she had learned and used them in  everyday  life.   She
has recommitted herself to the Air Force and the tasks set before her.
 She has and will continue to display true initiative and  perform  to
the  best  of  her   ability.    Her   display   of   confidence   and
professionalism has put her on the right path to regaining  the  trust
of  her  superiors  and  peers.   She  is  a  responsible,   motivated
individual, with a willingness to serve honorably.  Being promoted  to
senior airman would allow  her  the  opportunity  to  test  for  staff
sergeant.  This would make her eligible to reenlist and to  accomplish
her goal of fulfilling an honorable career in the Air Force.

In  support  of  her  appeal,  the  applicant  provided  an   expanded
statement, supportive statements, copies of her  Enlisted  Performance
Reports (EPRs), achievements, and other documents associated with  the
matter under review.

Applicant’s complete submission, with attachments, is at Exhibit A

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Military Personnel Data System (MilPDS)
indicates the applicant is currently serving on  active  duty  in  the
grade of airman, with a date of rank of 13 May 04.  Her  Total  Active
Federal Military Service Date (TAFMSD) is 5 Jun 98.  She has a date of
separation (DOS) of 21 Mar 07.  Her last five EPRs had overall ratings
of “5.”

On 11 Mar 03, the applicant was convicted by Special Court-Martial  of
three specifications of wrongfully using ecstasy and one specification
of wrongfully using cocaine during the period 1 Apr 01 to 11  Oct  02.
She was sentenced to a reduction from the grade of staff  sergeant  to
airman  basic,  confinement  for  eight  months,  and  a  bad  conduct
discharge (BCD).

On 8 Mar 04, the portion of the applicant’s sentence that provided for
a BCD was suspended by action of the Air  Force  Clemency  and  Parole
Board until 7 Jan 05 at which time, unless the suspension  was  sooner
vacated, would be remitted.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB recommended denial noting the applicant was accepted  into
the RTDP on 11 Jun 03 and successfully completed the program on 13 Nov
03.  She was returned to active duty on 23 Nov  03  in  the  grade  of
airman basic, with a DOR of 25 Mar 03.

AFPC/DPPPWB indicated that based on the applicant’s DOR  of  25 Mar 03
to airman basic, she would have been eligible for promotion to  airman
on 25 Sep 03 and to airman first class on 25 Jul 04, if there were  no
ineligibility factors  and  she  was  recommended  by  her  commander.
However, the applicant is currently  serving  under  a  suspended  BCD
punishment  until  7 Jan 05.   In  accordance   with   the   governing
instruction, an airman is ineligible for promotion  for  a  particular
cycle when he/she  has  been  convicted  by  a  court-martial,  or  is
undergoing punishment/suspended punishment imposed by a court-martial.
 The applicant would not be eligible for  promotion  to  airman  until
8 Jan 05, airman first class until 8 Nov 05, and senior  airman  until
8 Mar 08.  Her current date of separation (DOS) is  21  Mar  07.   The
MilPDS currently reflects a promotion eligibility status (PES) code of
“X” (eligible) and the applicant’s grade  as  airman  with  a  DOR  of
13 May 04.  This is incorrect since she is serving under  a  suspended
BCD and would not be eligible for promotion to airman until 8 Jan 05.

According to AFPC/DPPPWB, the RTDP is the  Secretarial  implementation
of 10 USC 953.  The RTDP gives airmen the opportunity to  be  returned
to active duty and have a punitive discharge, if  adjudged,  remitted;
it does not provide for the restoration of rank.  AFI 36-2502  governs
eligibility for promotion.  It  contains  no  provision  enabling  the
applicant to regain rank lost as a result of  a  criminal  conviction.
Completion of the RTDP does not even guarantee return  to  duty.   All
that is required is that airmen returned to duty be allowed  to  serve
at  least  one  year  before  separation.   While  the  applicant  has
successfully completed the RTDP, she has not demonstrated  that  there
is an error or injustice in the fact she was returned to  duty  as  an
airman basic.

AFPC/DPPPWB stated they recommend the MilPDS be corrected to reflect a
PES code of “F” and her current grade as airman basic, with a  DOR  of
25 Mar 03.  This correction would result in a loss of pay  (difference
between airman basic and airman) for the period 13 May 04 and the date
the correction is made.  Since the erroneous update to the MilPDS  was
not the applicant’s fault, AFPC/DPPPWB recommended  that  her  DOR  to
airman basic remain as 25 Mar 03, but the effective date be  the  date
correction  is  made  to  preclude  the  applicant  from  incurring  a
financial debt.

A complete copy of the AFPC/DPPPWB evaluation is at Exhibit C.

AFPC/JA recommended denial noting the applicant does not  assert  that
any specific error has occurred in any of the processes related to her
service, including  her  court-martial,  sentencing,  confinement,  or
return to active duty.  The gist of her request is that it would be an
injustice if she, after being returned to duty  following  her  court-
martial punishment, were not allowed to “commit 20 years  or  more  to
the Air Force” and to accomplish her goal of fulfilling “an  honorable
career in the United States Air Force.”

According to AFPC/JA, in considering her request,  and  whether  there
exists any injustice to her, the Board is called upon to consider  the
applicable policies and directives governing enlisted  promotions  and
reenlistment  in  the  light  of  the  applicant’s  particular   case.
Applicant’s specific request is that she be  immediately  promoted  to
senior airman, skipping the  time  and  performance  requirements  for
promotion to airman, airman  first  class,  and  senior  airman.   For
numerous reasons, they believe this would be inappropriate.  Given the
applicant’s DOS, the Board’s principal options, upon consideration  of
the applicant’s specific circumstances and  service  history,  are  to
allow her to separate at the time of her DOS with the potential of  an
honorable discharge, or to exercise discretion to extend  her  DOS  to
allow her additional time to compete for promotion  to  senior  airman
and reenlistment eligibility.

AFPC/JA  indicated  that  considering  the  seriousness  of  the  drug
offenses that resulted  in  her  conviction,  and  the  Board’s  long-
standing practice of avoiding direct promotions, they believe it would
be inappropriate to grant the applicant’s request to  be  promoted  to
the grade of senior airman.  Moreover, for those  same  reasons,  they
believe it would be inappropriate to extend the  applicant’s  DOS  and
provide  her  more  than  the  opportunity  to  complete  her  current
enlistment  and  be  discharged  honorably  as  contemplated  by   the
directive governing the RTDP.

A complete copy of the AFPC/JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to applicant on  14
Jan 05 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 error or injustice  warranting  corrective  action.   The
evidence of record indicates the applicant  was  convicted  by  court-
martial of wrongfully using ecstasy and cocaine,  which  resulted  in,
among other things, her reduction in  grade  from  staff  sergeant  to
airman basic.  She  was  subsequently  enrolled  in  and  successfully
completed the RTDP.  She now requests that  she  be  promoted  to  the
grade of senior airman so that she may be eligible to reenlist.  Since
the applicant was found guilty of the use of illegal  drugs,  and  has
not denied the commission of the offenses,  we  are  not  inclined  to
promote her to senior airman,  but  rather  believe  that  this  grade
should be earned.  However, in view of her  successful  completion  of
the RTDP, her recommitment to the high standards of the Air Force  and
outstanding duty performance, and the support  of  her  commander  and
others, we are sufficiently persuaded the applicant should be afforded
relief that would allow her to reenlist in the Air Force as it appears
she desires to do.   Furthermore,  the  Air  Force  will  be  able  to
continue to utilize an invested resource.  In addition,  we  note  the
applicant’s grade and DOR in the MilPDS were erroneous and  corrective
action by this Board may result in an indebtedness to  the  applicant,
since it appears she was paid accordingly.  As the error was due to no
fault of the  applicant,  we  believe  she  should  also  be  afforded
appropriate relief  to  alleviate  any  indebtedness.   Therefore,  we
recommend the applicant’s records be corrected to the extent set forth
below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.  She was promoted to the grade of airman effective and with a
date of rank of 8 Jan 05.

      b.  She applied for a remission of her indebtedness, incurred as
a result of her being paid based on an erroneous  grade  and  date  of
rank for the period 13 May 04  to  8  Jan  05,  and  her  request  was
approved by competent authority.

      c.  She be promoted to  the  grade  of  airman  first  class  in
accordance with the time in grade requirement in AFI 36-2502.

       d.  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 she is  authorized  to
reenlist in the Regular Air Force for a period of four  years  at  the
expiration of her current term of service, as an exception to policy.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2004-03396 in Executive Session on 5 Apr 05, under the  provisions  of
AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Mrs. Barbara R. Murray, Member
      Mr. Joseph D. Yount, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 5 Oct 04, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPWB, dated 16 Nov 04.
     Exhibit D.  Letter, AFPC/JA, dated 5 Jan 05.
     Exhibit E.  Letter, SAF/MRBR, dated 14 Jan 05.




                                   THOMAS S. MARKIEWICZ
                                   Chair



AFBCMR BC-2004-03396




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:

            a.  She was promoted to the grade of airman effective and
with a date of rank of 8 Jan 05.

            b.  She applied  for  a  remission  of  her  indebtedness,
incurred as a result of her being paid based on an erroneous grade and
date of rank for the period 13 May 04 to 8 Jan 05, and her request was
approved by competent authority.

            c.  She be promoted to the grade of airman first class in
accordance with the time in grade requirement in AFI 36-2502.

            d.  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 she is authorized to
reenlist in the Regular Air Force for a period of four years at the
expiration of her current term of service, as an exception to policy.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency