RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00075
            INDEX CODE:
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  13 Jul 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  reenlistment  ineligibility  status  be  waived,   his   security
clearance be reinstated, and he be promoted to  the  grade  of  senior
airman (SRA).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His request is based on clemency, not error or injustice.  He provides
supporting statements from four military chaplains (two of  which  are
unsigned), a letter of appreciation from the  commander,  and  letters
from two enlisted supervisors.

The applicant’s complete submission, with attachments, is  at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force for a period  of  four
years on 16 Oct 01.

On 12 Mar 03, the applicant was notified of his commander's intent  to
impose nonjudicial punishment upon  him  for  failing  to  go  to  his
appointed place of duty on 4 Mar 03.  On 17 Mar 03,  after  consulting
with counsel, the applicant waived his right  to  a  trial  by  court-
martial, did not request  a  personal  appearance  but  did  submit  a
written presentation.  On 18 Mar  03,  he  was  found  guilty  by  his
commander who imposed punishment in the form of forfeiture of  $100.00
pay per month for two months, 20 days of extra  duty,  restriction  to
Whiteman AFB, MO, for 30 days, and reduction from airman  first  class
(A1C) to airman, suspended through 17 Sep 03.  The applicant  did  not
appeal and the Article 15 was filed  in  his  Unfavorable  Information
File (UIF) on 24 Mar 03.

On 28 May 03, the applicant pled guilty to and, by  a  special  court-
martial, was found  guilty  of  larceny  for  stealing  from  a  staff
sergeant a Microsoft X Box video gaming system with  games  valued  at
$685.00, between, on or about 13 and 14 Sep 02.  He was sentenced to a
bad conduct discharge (BCD), three months of  confinement,  forfeiture
of $500.00 pay per month for three months, and reduction from  A1C  to
the grade of airman basic (AB).  The applicant entered confinement  on
28 May 03.  The Air Force Clemency and Parole Board (AFCPB)  suspended
the BCD until 18 Dec 04, at which  time,  unless  the  suspension  was
sooner vacated, it would be remitted.

The AFCPB approved the applicant’s  entry  into  the  Return  to  Duty
Program (RTDP), which he successfully completed.  He was  returned  to
duty on 19 Dec 03, in the grade of AB with a date  of  rank  (DOR)  of
11 Jun 03.  Based on this 11 Jun 03 DOR to AB, and if there  had  been
no ineligibility factors and he was recommended by his commander,  the
applicant would have been eligible for promotion to airman  after  six
months’ time in grade (TIG) on 11 Dec 03, to A1C after 10 months’  TIG
on 11 Oct 04, and SRA after 20 months’ TIG on 11 Jun 06.  However,  he
was serving under a suspended BCD punishment until  18 Dec  04,  which
rendered him ineligible for promotion consideration for  a  particular
cycle until completion of the suspended punishment on 19 Dec 04.

The applicant was assigned to the 99th  Logistics  Readiness  Squadron
(99 LRS)  at  Nellis  AFB,  NV,  on  4 Apr  04,  as  a  war  readiness
apprentice.

According  to  the  Military  Personnel  Data  System  (MilPDS),   the
applicant apparently was incorrectly promoted to the grade  of  airman
with a DOR of 21 Sep 04.  Because he was serving under a suspended BCD
until 18 Dec 04, he was not eligible for  promotion  to  airman  until
19 Dec 04.

According to AF IMT 418, dated 8 Jun  05,  the  applicant’s  executive
officer recommended him for reenlistment.

According to the MilPDS, the applicant  was  subsequently  incorrectly
promoted to the grade of A1C with a DOR of 21 Jul 05.  Because he  was
not eligible for promotion to airman  until  19 Dec  04,  he  was  not
eligible for promotion to A1C until 19 Oct 05, and to SRA until 19 Jun
07.  [Note:  Based on the incorrect A1C DOR of 21 Jul  05,  he  should
have sufficient TIG for promotion to SRA on approximately 21 Mar 07.]

If the applicant had not been court-martialed and reduced to the grade
of AB, he would have been promoted to the grade of SRA on  16 Feb  04,
provided there  were  no  ineligibility  conditions  and  he  had  the
recommendation of his commander.

The applicant is currently ineligible for reenlistment and has a  date
of separation (DOS) of 14 Apr 06.  He has a  reenlistment  eligibility
(RE) code of 4F (5 or more days lost during  current  enlistment)  for
having 181 days of lost time during this enlistment.  A 4F RE code  is
a waiverable code in that a member may request a waiver from the  unit
commander to reenlist or  extend  provided  the  member  is  otherwise
eligible and is not using this waiver provision to separate.  However,
a commander may not grant a waiver if  the  member  possesses  another
ineligibility condition for which there is no waiver provision.

HQ AFPC/DPPPWB advised via Email, dated 4 Apr 06, that  the  applicant
received the following performance reports and ratings:

          PERIOD ENDING      OVERALL EVALUATION

            25 Mar 05                    4
            20 Sep 04                    4
             8 May 03                    2

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPAE  advises  that  commanders  may  waive  two   or   more
ineligibility conditions at the same time, but  they  must  waive  all
conditions.  Unit commanders may not grant a waiver to any airman  who
possesses another  ineligibility  condition  for  which  there  is  no
waiver.  Since the applicant did not previously hold the grade of SRA,
the applicant’s commander cannot  waive  ineligibility  conditions  to
permit reenlistment.   Denial  is  recommended  as  a  review  of  the
applicant’s records finds no error or injustice at the time.  However,
if the Board’s  decision  is  to  grant  relief  by  waiving  all  the
ineligibility conditions, an RE code of 1A should be granted  only  if
the applicant reenlists.  If he chooses not to  reenlist,  the  1A  RE
code should be removed and the appropriate RE  code  applies.   Airmen
are not separated with a 1A RE code.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPPWB notes the applicant’s incorrect promotion to airman and
A1C  and  provides  details  regarding   the   applicant’s   promotion
eligibility and the pertinent DORs  based  on  various  circumstances.
The author notes the RTDP gives airmen the opportunity to be  returned
to active duty and have a punitive discharge  remitted;  it  does  not
provide for restoration of rank.  AFI 36-2505 governs eligibility  for
promotion and contains no provision enabling the applicant to  advance
in rank before minimum eligibility requirements are met or  to  retain
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.  The  applicant’s  request  for  promotion  to  SRA
should be denied.  There is no error or injustice; he simply is asking
for clemency in order to remain on active duty.  Since  the  erroneous
promotions to airman and A1C  were  not  the  applicant’s  fault,  the
author recommends this data remain as is  to  preclude  the  applicant
from incurring a financial debt.

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/JA notes Title 10, USC, Section 953, Remission  or  suspension
of sentence; restoration to duty; reenlistment,  does  not  provide  a
basis for a member to assume that successful completion  of  the  RTDP
will qualify the member for a full  military  career.   As  they  have
previously  written  in  similar  cases,  there  is  no  inconsistency
inherent between the RTDP and the normal application of promotion  and
reenlistment restriction on those whose misconduct is the  sole  basis
for the restriction involved.  The applicant benefited from  the  RTDP
and, presuming  that  he  continues  to  serve  honorably,  should  be
separated in Apr 06 with an honorable discharge and the opportunity to
claim his Montgomery GI Bill benefits.  The applicant submits  nothing
that supports that his inability to reenlist under  normal  Air  Force
procedures  represents  an  injustice.   While  the  RTDP  instruction
contemplates rare cases where the AFBCMR may choose to  extend  relief
to an airman who has successfully completed the program but is  barred
from reenlistment by normal time and grade standards, they do not  see
this case warranting that action.  In light of the serious offense the
applicant was convicted of committing and the  lack  of  justification
with the application that denial would result in  an  injustice,  this
case is inappropriate for further relief other than that  afforded  by
the applicant’s completion of his current term of enlistment  and  the
opportunity for an honorable discharge.  Denial is recommended.

A complete copy of the evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 24 Feb 06 for review and comment within 30 days.   As  of
this date, this office has received no response.

A complete copy of applicant’s response is at 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.    Insufficient relevant evidence has been presented to demonstrate
granting the requested relief on the basis of clemency.  The applicant
concedes there was no error or injustice regarding  the  circumstances
of his court-martial and demotion, and appeals for the  relief  sought
on the basis of clemency.  After a thorough review of the evidence  of
record and the  applicant’s  submission,  we  are  not  persuaded  his
reenlistment ineligibility  status  should  be  waived,  his  security
clearance should be restored, or he should be promoted to SRA.  We did
not reach this conclusion lightly, as we generally are very supportive
of those applicants who have completed the RTDP and request some  form
of relief from the Board in order to continue their Air Force careers.
  Typically,  these   applicants   submit   numerous   statements   of
supervisory, rating chain, and command support  for  their  retention.
They provide overwhelming evidence that they  have  been  successfully
rehabilitated, are  highly  motivated  to  excel  and  continue  their
career, are performing in an outstanding manner, and are considered by
their superiors to  be  valuable  Air  Force  assets  that  should  be
retained.  By contrast, this applicant provides no personal  statement
demonstrating  a  fundamental  change  in  outlook.   The  letters  he
submits, two of which are unsigned, do not reflect high-level  support
for his retention.  The 18 Nov 04 letter from his commander is  merely
a letter of appreciation and does  not  speak  to  the  issue  of  the
requested relief or even his retention in the Air Force.  Finally, the
fact that the applicant received an  overall  rating  of  “4”  on  his
25 Mar 05 performance report appears to indicate a less  than  stellar
level of performance on his part or some uncertainty in his  potential
on his rating chain’s part.  All of these  factors  coalesced  into  a
reluctance on our part to recommend granting the requested relief.  We
congratulate the applicant on his completing the  RTDP  and  sincerely
wish him personal and  professional  success.   However,  he  has  not
persuaded us that it is in the best interests  of  the  Air  Force  to
correct his records to afford more relief than that already  conferred
by the RTDP or to the extent that would further his military career.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  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  this  application  in
Executive Session on 4 April 2006 under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Ms. Mary C. Puckett, Member
                 Ms. Janet I. Hassan, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2006-00075 was considered:

   Exhibit A.  DD Form 149, dated 3 Jan 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPAE, dated 25 Jan 06, w/atchs.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 30 Jan 06.
   Exhibit E.  Letter, HQ AFPC/JA, dated 17 Feb 06.
   Exhibit F.  Letter, SAF/MRBR, dated 24 Feb 06.




                                   THOMAS S. MARKIEWICZ
                                   Chair