RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02856
            INDEX CODE:  131.00
            COUNSEL:  NONE
            HEARING DESIRED:  YES

      MANDATORY CASE COMPLETION DATE: 19 Mar 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be reinstated to the grade of airman first class  with  an  effective
date and date of rank (DOR) of 26 Feb 05.

2.  His expiration of term of service (ETS) be extended 13 months.

_________________________________________________________________

APPLICANT CONTENDS THAT:

After completion of the Return to Duty Program (RTDP) he  was  briefed  that
he would be allowed to reenlist  with  an  approved  waiver  signed  by  his
commander.  The reenlistment would have extended him to  his  high  year  of
tenure (HYT) date of 21 Dec 09.  However, personnel  at  AFPC  notified  his
MPF that he was ineligible to reenlist because he was not  a  senior  airman
and that the commander's  waiver  was  invalid.   He  requested  a  36-month
extension as being in the best interest of the Air Force,  but  his  request
was denied.  He then requested a 60-day extension, which was  granted.   The
Air Force has invested  a  great  deal  of  time,  money,  and  effort  into
allowing him this second opportunity to become a productive  member  of  the
Air Force.  Without the rank reinstatement and 13-month extension, he  would
be forced to separate from the Air Force.  The extension will also give  him
an opportunity  to  test  for  staff  sergeant  before  his  HYT  date.   In
addition, applicant states the position he is filling  is  critical  to  the
27th Fighter Wing and it would be in the best interest to retain  him  since
his  present  squadron  is  currently  manned  at  49.9%  as  a  result   of
deployments, separations and permanent change of station moves.

In  support  of  his  request,  applicant  provided  a  personal  statement,
character references, award certificates, his  Enlisted  Performance  Report
closing  22  Feb  05,  a  performance   questionnaire,   and   documentation
associated with  his  extension  request.   His  complete  submission,  with
attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  24
Apr 96.  He was progressively  promoted  to  the  grade  of  senior  airman,
having assumed that grade effective and with a date of rank of 24 Apr 99.

On  15  Jan  03,  applicant  was  tried   by   general   court-martial   for
specifications  of  larceny,  filing  false  claims  (travel  voucher),  and
copyright infringement.  He pled guilty and  was  sentenced  to  confinement
for 15 months, reduction to the grade of airman basic,  and  a  bad  conduct
discharge (BCD).  He was selected for participation in the RTD  program  and
completed that program in July 2004.  The  Air  Force  Clemency  and  Parole
Board (AFCPB) approved his return to  duty  on  24  Aug  04.   He  has  been
subsequently promoted to the grade of airman on 23  Feb  05.   He  currently
has a projected DOS of 21 Nov 05.  The applicant's Reenlistment  Eligibility
(RE) code is "4E" "grade is Airman First Class or below and the Airman is  a
second-term or career airman" which renders him ineligible to  reenlist  and
unless specifically authorized, is ineligible to extend his enlistment.

_________________________________________________________________

AIR FORCE EVALUATION:

DPPAE recommends denial.  DPPAE states in order to extend, his RE code  must
be  waived  to  an  RE  code  that  makes  him  reenlistment  eligible.   In
accordance with AFI 36-2606, he is ineligible to reenlist or extend  due  to
insufficient grade, but may request a waiver  from  the  unit  commander  to
reenlist or extend provided he is otherwise eligible and  is  a  first  term
airman who previously held the grade of senior  airman  or  above  currently
serving in the grade of airman first class.  He is  not  eligible  to  apply
for a waiver since he is not a first term airman.

The DPPAE evaluation is at Exhibit C.

AFPC/DPPPWB recommends denial.  DPPPWB states the system currently  reflects
his date of rank to airman as 23 Feb 05; however, he  was  serving  under  a
suspended BCD punishment until it was remitted on 7 Jun 05.   Therefore,  he
was not eligible for promotion to airman until that date.  Based  on  the  7
Jun 05 DOR, he will not be eligible for  promotion  to  airman  first  class
until 7 Apr 06 and senior airman  until  7  Dec  07.   Since  the  erroneous
promotion was not his fault, DPPPWB recommends the date remain  as  is.   He
would then be eligible for promotion to airman first class on 23 Dec 05  and
to senior airman on 23 Aug 06.

DPPPWB states 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.   The  governing  instruction  for
promotions contains no provision enabling members 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.   If  his
criminal charges were on  his  record  before  initially  entering  the  Air
Force, he most likely would not have been accepted.

The DPPPWB evaluation is at Exhibit D.

AFPC/JA recommends denial.  JA states the applicant does not assert that  an
error or injustice occurred in any of the processes related to his  service,
including his court-martial, sentencing, confinement, or  return  to  active
duty.  He instead requests the Board "consider the sincerity  of  my  desire
to continue military service not only for my family and the Air  Force,  but
also for my name and personal honor."

JA believes approving his  requests  would  be  wholly  inappropriate.   His
reduced rank is the direct  result  of  a  court-martial  sentence  properly
given in response to his crimes.  The convening authority and AFCPB had  the
opportunity to suspend his rank reduction and chose not to do  so.   Nothing
in the statute or 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.  AFI 31-205 provides that candidates  who
are returned to duty  will  "...serve  at  least  one  year  or  until  ETS,
whichever is longer."  The principal benefit of the  program  is  to  "offer
selected court-martialed enlisted personnel with exceptional  potential  the
opportunity  to  be  returned  to  active  duty  and  have  their   punitive
discharge, if adjudged, remitted."  The RTDP  instruction  does  contemplate
rare cases where the AFBCMR may choose to extend relief when an  Airman  who
has successfully completed  the  program  is  barred  from  reenlistment  by
normal time and grade standards.  Airmen are also permitted to petition  the
AFBCMR for "some or all of the rank lost as  a  result  of  a  court-martial
sentence."  In light of the serious nature of his crimes, JA  does  not  see
his case warranting further relief.

The JA evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states he was promoted to airman on 23 Sep 05  and  his  commander
backdated the DOR.  Applicant notes that  the  criminal  charges  as  DPPPWB
states it, were not on his record before he entered  service  and  since  he
was court-martialed this is the only way to  have  an  opportunity  to  come
back to active duty.  The MPF personnel  at  Cannon  AFB  were  reading  the
paragraph regarding Prisoners Returned to Duty when they determined that  he
was eligible to reenlist with a waiver from his commander.  His RE code  was
"4F" upon completing the RTDP and was  in  the  system  for  almost  a  year
before he was promoted and removed from probation by the AFPCB.    There  is
no rule to allow him to receive a waiver to reenlist because he is a  second
term Airman but the regulation is not very clear on those returned  to  duty
after completion of the RTDP.  JA states he is asking for promotion  to  E-4
when in fact he is only asking for promotion to E-3 which is  not  the  rank
he was at the time of his court-martial.  The applicant cites three  similar
AFBCMR cases in which the Board granted relief in a manner that allowed  the
members the opportunity to have a chance at having an Air Force  career.   A
promotion to airman first class and the 13-month extension  would  give  him
the opportunity to earn the rank of senior airman.   While  the  RTDP  gives
Airmen the opportunity to rid themselves of any punitive discharge  actions,
it also puts a great deal of time  and  effort  into  the  people  that  are
allowed to enter the program.

His complete response, 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  demonstrate  the
existence of an injustice warranting  partial  relief.   While  we  are  not
persuaded that promotion to the grade of airman first  class  is  warranted,
we believe it would not be unreasonable  to  grant  partial  relief  of  the
applicant's request.  In this regard, in view of his  successful  completion
of the RTD program, the plethora of supporting statements  provided  by  his
chain of command, his  outstanding  performance  record,  and  his  apparent
renewed commitment to the high standards of the Air Force, we are  persuaded
that he should be awarded relief that would  allow  him  an  opportunity  to
remain in the Air Force long enough to earn  his  rank  through  the  normal
promotion process.  Therefore, we recommend  his  records  be  corrected  as
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.  His Reenlistment Eligibility Code be, and hereby  is,  changed  to
"3K."

      b.  He is granted a waiver and is eligible to reenlist in the  Regular
Air Force.

      c.  He is granted a  waiver  of  the  Career  Job  Reservation  as  an
exception to policy.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2005-
02856 in Executive Session on 7 Nov 05, under  the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Mr. Gregory A. Parker, 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 13 Sep 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPAE, dated 15 Sep 05.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 26 Sep 05.
    Exhibit E.  Letter, AFPC/JA, dated 13 Oct 05.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Oct 05.
    Exhibit G.  Letter, Applicant, dated 14 Oct 05, w/atchs.





                             THOMAS S. MARKIEWICZ
                                             Panel Chair

AFBCMR BC-2005-02856




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.  His  Reenlistment  Eligibility  Code  be,  and  hereby  is,
changed to "3K."

            b.  He is granted a waiver and is eligible to  reenlist  in  the
Regular Air Force.

            c.  He is granted a waiver of the Career Job Reservation  as  an
exception to policy.







                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency