FIFTH ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-1993-01958

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  30 July 2007


_________________________________________________________________

APPLICANT REQUESTS THAT:

His records be corrected to show that on 25 April 2005, he enlisted  in  the
Air Force Reserve in the grade of master sergeant, (E-7), rather than  staff
sergeant (E-5).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His current grade of staff sergeant in the  Air  Force  Reserve  is  unjust.
The records are in error due to the fact that he was wrongfully accused  and
received a court-martial; however, due to  prejudicial  error,  all  charges
were later dismissed.  If he had remained on  active  duty,  he  would  have
progressed well up the military ranks.

Applicant’s complete submissions, with attachments, are at Exhibits  JJ  and
KK.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air  Force  on  3
October 1980 for a period of four years in the grade of staff  sergeant  (E-
5).  He served continuously until he was  honorably  discharged  on  6  June
1989, under the provisions of AFR 35-4 (Disability – Entitled  to  Severance
Pay), with a 20% disability rating.  At the time of his  discharge,  he  was
credited with 15 years, 8 months, and 6  days  of  active  federal  service.
His highest grade held was staff sergeant (E-5).

On 17 November 1994, the Board considered his  request  to  be  returned  to
active duty for the period following his  discharge  up  to  his  return  to
active duty.  The Board found insufficient evidence of  error  or  injustice
and denied his request.

On 31  October  1995,  the  Board  reconsidered  his  request  and  was  not
convinced that the  findings  of  unfitness,  at  the  time  of  applicant’s
discharge, was improper and denied his request.

20 October 1998, the Board reconsidered applicant’s amended request that  he
be returned to active duty in the grade of  master  sergeant,  with  service
credit for the period following his discharge up to  his  return  to  active
duty; his court-martial conviction be removed from his records;  and  he  be
given restitution of all pay and benefits he forfeited.  The Board  was  not
persuaded that his medical discharge was either improper or unjust.

On 23 March 2001, the AFBCMR reconsidered applicant’s  request  that  he  be
returned to active duty in  the  grade  of  master  sergeant,  with  service
credit for the period following his discharge up to  his  return  to  active
duty; his court-martial conviction be removed from his records;  and  he  be
given restitution of all pay and benefits he forfeited.  The Board  was  not
persuaded that at the time of his discharge, the diagnosis of his  condition
was in error or  unjust,  or  that  his  rights  were  violated  during  his
processing through the DES.

On 13 July 2004, the Board considered  his  request  that  his  RE  code  be
changed to allow his reenlistment.  Absent a showing the  diagnosis  of  the
applicant’s condition was in error or unjust, the Board  found  insufficient
evidence to warrant a change in his records and denied his request.  For  an
accounting of the facts and circumstances surrounding the  application,  and
the rationale of the earlier decision by the Board, see the Fourth  Addendum
to Record of Proceedings at Exhibit II.

Applicant enlisted in the Air Force Reserve in the grade of  staff  sergeant
(E-5) on 25 April 2005, for a period of four years.

In an application, dated 29 November 2005,  and  letter,  dated  14 December
2005, applicant requests that his  record  be  corrected  to  show  that  he
enlisted in  the  Air  Force  Reserve  in  the  grade  of  master  sergeant.
Applicant’s complete submissions, with attachments, are at Exhibits  JJ  and
KK.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

After  thoroughly  reviewing  the  additional  documentation  submitted   by
applicant, which was previously considered by the Board in  its  17 November
1994 consideration of his initial application and noting his 25  April  2005
enlistment in the Air Force Reserve, we are not persuaded that he  has  been
the victim of error or  injustice.   Applicant  contends  that  his  current
grade of staff sergeant in the Air Force Reserve is unjust  since  he  would
have remained on active duty in the Regular Air Force  and  progressed  well
up the military ranks, had  he  not  been  wrongfully  court-martialled  for
charges that were later dismissed due to prejudicial  error.   We  disagree.
Contrary to the applicant’s belief, the court-martial charges were  not  the
basis for his discharge, but rather his  physical  unfitness  for  continued
military service.  In this respect, we note  that  in  1989,  applicant  was
processed through the  Disability  Evaluation  System  (DES)  based  on  the
diagnosis of somatoform pain syndrome and  was  found  unfit  for  continued
military service.  As a result, he was discharged with severance pay  and  a
20% disability rating.  There is no evidence the  medical  discharge  was  a
result of the court-martial action taken against him.  To the contrary,  the
medical evidence in this case indicates  that  he  had  a  long  history  of
chronic neck and back pain relating to  a  fall  in  June  1980,  which  was
incurred in the line of duty.  Once he was found physically  unfit,  he  was
automatically   rendered    ineligible    for    promotion    consideration.
Furthermore, once the court-martial charges against him were dismissed,  all
rights, privileges, and property of which he was deprived by virtue  of  the
findings of guilty and the  vacated  sentence  were  restored.   Applicant’s
2005 enlistment in  the  Air  Force  Reserve  is  duly  noted;  however,  no
evidence has been presented to indicate  that,  at  the  time  of  his  1989
separation, the diagnoses made  by  competent  authority  were  improper  or
based on erroneous information.  Absent such  evidence,  we  find  no  basis
upon which to conclude that he should have remained on  active  duty,  which
would have been a prerequisite to any promotion considerations to  a  higher
grade.  Since the highest  grade  applicant  satisfactorily  held  while  on
active duty was staff sergeant, we are not  persuaded  that  his  enlistment
grade in the Air Force Reserve is in error or  unjust.   Therefore,  in  the
absence of evidence to  the  contrary,  we  find  no  basis  upon  which  to
recommend favorable consideration of his request.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the additional  evidence  presented  did  not
demonstrate  the  existence  of  material  error  or  injustice;  that   the
application  was  denied  without  a  personal  appearance;  and  that   the
application  will  only  be  reconsidered  upon  the  submission  of   newly
discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-1993-
01958 in Executive Session on 26 January 2006, under the provisions  of  AFI
36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Ms. LeLoy W. Cottrell, Member
                  Ms. Patricia R. Collins, Member

The following documentary evidence was considered:

      Exhibit II.  Fourth Addendum to Record of Proceedings, w/atchs.
      Exhibit JJ.  DD Form 149, dated 29 Nov 05, w/atchs.
      Exhibit KK.  Letter, Applicant, dated 14 Dec 05.





                                   RICHARD A. PETERSON
                                   Panel Chair