RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00672
            INDEX CODE:  133.00

      APPLICANT  COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  28 AUGUST 2006

_________________________________________________________________

APPLICANT REQUESTS:

Reinstatement to the grade of senior airman (E-4) to  enable  him  to
apply for a Career Job Reservation (CJR) and reenlistment in the  Air
Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was given the opportunity to  regain  his  place  on  active  duty
through the Air Force Return to  Duty  Program  (RTDP)  and  will  be
forced to separate at the end of his one-year probationary period due
to grade and CJR requirements.  His current grade of airman basic (E-
1) prohibits him from remaining in the Air Force beyond his  upcoming
date of separation (DOS).  The action he  seeks  will  allow  him  to
reenlist and continue his Air Force career.

In  support  of  his  request,  the  applicant  submits  a   personal
statement,  letters  of  support  from  his  chain  of  command   and
additional  documents  associated  with  the  issues  cited  in   his
contentions.  The applicant’s complete submission, with  attachments,
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his enlistment in the Regular Air Force  in  the
grade of airman basic (E-1) on 10 September 1997 for a period of  six
years.  He was progressively promoted to the grade of staff  sergeant
(E-5), with a date of rank of 1 Mar 02.  The applicant was reduced to
the  grade  of  airman  basic  (E-1),  pursuant  to  a  court-martial
conviction.

Information  extracted  from  the  Military  Personnel  Data   System
(MilPDS) reveals he is currently serving on active duty in the  grade
of airman (E-2), with an effective date and date of rank of  27 March
2005.  The applicant has an established date of separation  (DOS)  of
23 June 2005.  His current High Year of Tenure Date is 4 March 2010.

In August 2003, the applicant was tried by  a  general  court-martial
while serving in the grade of staff sergeant (E-5).  He  pled  guilty
to using methamphetamines, between 1 June and 17 September 2002,  and
ecstasy, between 1 March 2001 and 30 April 2002.  He was found guilty
and, on 11 August 2003, was sentenced  to  a  bad  conduct  discharge
(BCD), reduction to the grade of E-1, confinement  for  seven  months
and forfeiture of all pay and allowances.  The sentence was  approved
and, except  for  the  bad  conduct  discharge,  was  executed.   The
applicant applied for and was accepted into the RTDP.   He  graduated
RTDP and was entered into casual status, effective 4 February 2004.

On 6 January 2005, the Air Force Clemency and Parole  Board  approved
clemency and his BCD was remitted, effective 5 January 2005.

The applicant was rendered one  Enlisted  Performance  Report  (EPR),
closing 26 March 2005, with a promotion recommendation of “5.”

_________________________________________________________________

AIR FORCE EVALUATIONS:

HQ AFPC/DPPPWB  recommends  the  grade  restoration  portion  of  the
application be denied.  DPPPWB states the applicant would  have  been
eligible for promotion to airman on 16 February  2005;  however,  his
top Enlisted Performance Report, closing 9 May 2003, was a  referral.
Airmen exceeding Time in Grade/Time in Service (TIG/TIS) requirements
for promotion to  E-1  through  E-4  may  be  promoted  the  day  the
ineligibility condition no longer exists.  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.  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 and  provided  numerous
letters in support of his request, no error or injustice occurred  in
his case.  DPPPWB indicates that if these criminal charges  (use  and
distribution of drugs) were on his record before he initially applied
for entry into the Air Force, he would  most  likely  not  have  been
accepted.  The HQ AFPC/DPPPWB evaluation is at Exhibit C.

HQ AFPC/DPPAE recommends  the  CJR  portion  of  the  application  be
denied.  DPPAE states that in order to be considered for  a  CJR  and
for reenlistment, the member must have previously held E-4, but  more
importantly, must hold E-3 for a minimum of 12 months  from  his  new
date of rank.  While the applicant  has  successfully  completed  the
RTDP,  he  will  not  meet  the  basic  criteria   for   reenlistment
eligibility as of his  DOS.   The  HQ  AFPC/DPPAE  evaluation  is  at
Exhibit D.

HQ AFPC/JA recommends the application be denied in full.   JA  states
that considering the seriousness of the drug offenses  the  applicant
was convicted of, and the Board’s long standing practice of  avoiding
direct promotions, it would be inappropriate to grant the applicant’s
request to be promoted to the grade of E-4.  The applicant’s specific
request is that he be immediately promoted to E-4, skipping the  time
and performance requirements for promotion to E-3 and  to  E-4.   For
the numerous reasons identified in the advisory opinion, JA  believes
this would be wholly inappropriate.   The  core  of  the  applicant’s
claim is that since he successfully completed the RTDP, he should  be
allowed to continue his military career.  Nothing in the  statute  or
the governing directive for the RTDP provides a basis for a member to
assume that successful completion of the  program  will  qualify  the
member for a full military career.  As previously written in  similar
cases, there is no inconsistency inherent between the  RTDP  and  the
normal application of  promotion  and  reenlistment  restrictions  on
those whose  misconduct  is  the  sole  basis  for  the  restrictions
involved.  Applicant’s HYT will require his  separation  on  23  June
2005 unless he is granted an  administrative  waiver  or  the  AFBCMR
takes some curative  action.   He  will  be  ineligible  to  reenlist
because he will not be able to attain E-4 before his DOS.   In  light
of the serious categories of drugs involved in  applicant’s  admitted
drug abuse, it is JA’s opinion  that  the  applicant’s  case  is  not
appropriate for further relief than that afforded by  his  completion
of his  current  term  of  enlistment  and  the  opportunity  for  an
honorable discharge.  The HQ AFPC/JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR STAFF EVALUATIONS:

The applicant reviewed the advisory opinions and  indicates  that  he
has since become eligible and was promoted  to  E-2.   Despite  being
recognized through receiving Airman of the Quarter and Airman of  the
Year for the 72d Medical Support Squadron, his goals over the past 11
months has been more geared toward making a difference.

In support of  his  appeal,  the  applicant  submits  copies  of  his
promotion information sheet and separation orders.   The  applicant’s
complete submission, with attachments, is at Exhibit G.

_________________________________________________________________

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  warrant  a
measure of clemency.  We are aware that the Return to Duty Program is
extremely competitive and that relatively few  members  such  as  the
applicant are approved for entry in the program.  While not  ignoring
the seriousness of the offenses of which the applicant was convicted,
it appears that the applicant’s peers and superiors alike discern  in
him great potential to successfully  complete  his  military  career.
This is evident  in  view  of  the  strong  support  by  his  current
superiors who indicate he has been rehabilitated and is considered  a
valuable  asset  to  his  organization  and   to   the   Air   Force.
Notwithstanding the discrepancy between the HYT and  Return  to  Duty
policies, because he was selected for participation in the  RTDP,  we
believe that the provisions of the later policy govern in this  case.
The stated intent of RTDP is unambiguous.  Individuals in  situations
such as this applicant will be retained at least one  year  or  until
their ETS, whichever is later.  In view of the above and  the  stated
objectives of the Return to Duty Program, we believe that to  require
this applicant to separate after being returned to duty  for  such  a
short period of time would be an extreme injustice to  the  applicant
and a loss to the Air Force.  Therefore, it is our opinion  that,  as
an exception to existing policies, he should be placed in a  position
that would allow him to continue his career.   It  appears  that,  in
order to do so, he must be serving in the grade of senior airman  (E-
4) and be approved for a Career Job Reservation (CJR).   Accordingly,
it is these  corrections  we  propose  in  order  to  facilitate  his
continued service in the Air Force.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

    a.  He was promoted to the grade of senior airman, effective  and
with a date of rank of 27 March 2005.

    b.  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 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 13 June 2005 under the  provisions  of  AFI  36-
2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Martha A. Maust, Member
                 Mr. Wallace F. Beard Jr., Member

All members voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered in connection with  BC-
2005-00672:

     Exhibit A.  DD Form 149, 17 February 2005, with attachments.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPWB, dtd 4 March 2005.
     Exhibit D.  Letter, AFPC/DPPAE, dated 17 March 2005.
     Exhibit E.  Letter, AFPC/JA, dated 26 April 2005.
     Exhibit F.  Letter, SAF/MRBR, dated 29 April 2005.
     Exhibit G.  Applicant’s Letter, dated 3 May 2005, with
                 attachments.



                                   THOMAS S. MARKIEWICZ
                                   Chair








AFBCMR BC-2005-00672




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:

          a.  He was promoted to the grade of senior airman, effective
and with a date of rank of 27 March 2005.

          b.  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 at the expiration of his current
term of service, as an exception to policy.








      JOE G. LINEBERGER

      Director

      Air Force Review Boards Agency