RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00829
            INDEX CODE:  112.07
      XXXXXXXXXXXXXX   COUNSEL:  NONE

      XXXXXXXXXXXXXX   HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to the rank of senior airman (E-4).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He successfully completed the Return to Duty Program (RTDP) and  after
one year he has performed exceptionally well.  He feels  the  progress
he has made since his RTD has benefited him and the Air Force as well.
 He has  proven  although  he  made  a  bad  decision,  if  given  the
opportunity he could overcome that bad decision.  He has fulfilled all
requirements and has been a positive contributor to his unit  and  the
Air Force.

In support of his appeal, the applicant provided a personal  statement
and two Character Reference Letters from his co-workers.

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 first class, with a date  of  rank  of  17 April 2005.
His  Total  Active  Federal  Military   Service   Date   (TAFMSD)   is
16 December 1998.   He   has   a   date   of   separation   (DOS)   of
25 November 2006.  His last five EPRs had overall ratings of “5.”

On 3 March 2003, the applicant was convicted by Special  Court-Martial
of stealing money and checks belonging to another airman  and  writing
fraudulent checks on that airman’s account.  After pleading guilty  to
all the charges and specifications, the  applicant  was  sentenced  to
reduction in grade to E-1, forfeitures of $500 pay per month for three
months, three months in confinement, a $490 fine, and an additional 30
days in confinement if the fine was not paid.

On 7 November 2003, the  portion  of  the  applicant’s  sentence  that
provided for a BCD was suspended by action of the Air  Force  Clemency
and Parole Board (AFCPB) until 5 November 2004, at which time,  unless
the suspension was sooner vacated, would be remitted.

The applicant was accepted into and successfully completed  the  RTDP.
He was returned to active duty in the grade of AB with a date of  rank
of 17 March 2003.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB recommended denial noting while the applicant successfully
completed the RTDP, he has not demonstrated that there is an error  or
injustice in the fact that he was returned to duty as an airman basic.
 Therefore, they recommend this application be denied for  failure  to
prove the existence of an error or injustice.

AFPC/DPPPWB  indicated  that  based  on   the   applicant’s   DOR   of
17 March 2003 to  airman  basic,  he  would  have  been  eligible  for
promotion to airman on 17 Sep 2003 and to airman first class on 17 Jul
2004, if there were no ineligibility factors and he was recommended by
his commander.

However, the applicant was  serving  under  a  suspended  bad  conduct
discharge punishment until 5 November 2004.  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 was not eligible for promotion to airman until
6 November 2004, airman first class until 6 September 2005, and senior
airman until 6 May 2007.  His current  date  of  separation  (DOS)  is
25 November 2006.  MilPDS currently reflects the applicant’s grade  as
airman with a  DOR  and  effective  date  of  17 June 2004.   This  is
incorrect since he is serving under a suspended BCD and would  not  be
eligible for promotion to airman until 5 November 2004.

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.

AFPC/DPPPWB stated they recommend the MilPDS be corrected  to  reflect
his DOR and effective date of rank to airman as 6 November 2004.  This
correction would result in a loss of pay  (difference  between  airman
basic and airman) for  the  period  17 June  2004  and  the  date  the
correction is made.  Since the erroneous update to the MilPDS was  not
the applicant’s fault, AFPC/DPPPWB recommended that his 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 his
service, including  his  court-martial,  sentencing,  confinement,  or
return  to  active  duty.   His  request  claims  his  progress  since
returning to active duty has not only benefited  him,  “but  has  also
benefited the Air Force as well.”  The applicant’s specific request is
that he  be  immediately  promoted  to  E-4,  skipping  the  time  and
performance requirements for promotion to   E-2, to E-3 and to E-4.

According to AFPC/JA, in considering his request,  they  believe  this
would be wholly inappropriate.  First, the  applicant’s  rank  is  the
direct result of a court-martial sentence given  in  response  to  his
larceny  and  fraud  in August 2002.   It  would  not  be  proper   to
implicitly invalidate that punishment by direct promotion to his  pre-
court-martial rank.  Second, both the applicant’s convening  authority
and the AFCPB had the opportunity  to  suspend  the  applicant’s  rank
reduction in the course of their full review of his case  and  service
history and chose not to do so.

AFPC/JA indicated that considering the seriousness of  the  crimes  of
which the  applicant  was  convicted,  the  applicant’s  case  is  not
appropriate for  further  relief  other  than  that  afforded  by  his
completion of his current term of enlistment and the  opportunity  for
an honorable discharge.  AFPC/JA believes the  application  should  be
denied in full.

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 the applicant on
13 May 05 for review and response.  As of this date, no  response  has
been received by this office.

_________________________________________________________________


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
corrective  action.   While  the  Board   remains   unpersuaded   that
reinstatement to the grade of senior airman is  warranted  because  of
the serious nature of the offenses he committed,  the  Board  believes
that it would not be unreasonable  to  grant  partial  relief  of  the
applicant’s request.  In this respect, the Board notes the evidence of
record indicates the applicant  was  convicted  by  court-martial  for
stealing money and checks on another airman’s account, which  resulted
in, among other things, his reduction in grade from senior  airman  to
airman basic.   He  was  subsequently  enrolled  in  and  successfully
completed the RTDP.  In view of his successful completion of the RTDP,
his current recommitment to the high standards of the Air  Force,  and
outstanding  duty  performance,  we  are  sufficiently  persuaded  the
applicant should be afforded relief that would allow him  to  reenlist
in the Air Force.  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.  He was promoted to the grade of airman (E-2) with a date  of
rank of 6 November 2004, and an effective date of 17 June 2004.

      b.  He was promoted to the grade of  airman  first  class  (E-3)
with a date of rank of 6 January 2005, and an effective date 6 January
2005.

      c.  Competent authority approved a  waiver  of  the  Career  Job
Reservation as an exception to policy, and  that  he  is  eligible  to
reenlist in the Regular Air Force at the  expiration  of  his  current
term of service.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2005-00829 in Executive  Session  on  15  September  2005,  under  the
provisions of AFI 36-2603:




                 Mr. Thomas S. Markiewicz, Chair
                 Mr. Gregory A. Parker, Member
            Ms. Jan Mulligan, Member

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

     Exhibit A.  DD Form 149, dated 2 Mar 05, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPPWB, dated 24 Mar 05.
     Exhibit D.  Letter, AFPC/JA, dated 5 May 05.
     Exhibit E.  Letter, SAF/MRBR, dated 13 May 05.




                                   THOMAS S. MARKIEWICZ
                                   Chair


AFBCMR BC-2005-00829




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 XXXXXXXXXXXXXXXXXXX be corrected to show that:

      a.  He was promoted to the grade of airman (E-2) with a date  of  rank
of 6 November 2004, and an effective date of 17 June 2004.

      b.  He was promoted to the grade of airman first class  (E-3)  with  a
date of rank of 6 January 2005, and an effective date of 6 January 2005.

      c.  Competent authority approved a waiver of the Career Job
Reservation as an exception to policy, and that he is eligible to reenlist
in the Regular Air Force at the expiration of his current term of service.









JOE G. LINEBERGER

Director

Air Force Review Boards Agency