RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-01665
            INDEX CODE:  130.00, 112.00
      XXXXXXX                     COUNSEL:  NONE
                                  HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His high year of tenure (HYT)  for  master,  senior  and  chief  master
sergeant (MSgt, SMSgt, CMSgt), be extended for two years.

2.  He receive full back pay for the time he was confined and on  appellate
leave after his court-martial that was subsequently overturned.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He missed promotion opportunities when  he  was  wrongfully  convicted  and
discharged from  active  duty.   He  believes  he  should  have  two  extra
opportunities to be considered for promotion in future grades.  Before  his
conviction was overturned, he was ordered to jail for 5 months, received  a
bad conduct discharge (BCD) and was reduced in grade.  In addition, he  did
not receive full back pay and was given the "small difference" from what he
earned to what he would have earned in the Air Force.

In support of his request, the applicant submits a  copy  of  his  military
trial/appeal records.

The complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 8 June 1988.

On 8 January 1991 he was convicted by a General Court Martial and sentenced
to a bad-conduct discharge (BCD), confinement for five months  and  reduced
to E-1.  The specific reasons for these actions were the applicant went  to
the Exchange at Eglin AFB, Florida to purchase a stereo for  his  car.   He
wanted an Audiovox AM/FM cassette player priced at $99.00 and found  a  box
that purported to contain this item and took it to the checkout.   He  paid
$99.00 for the item and took it to his car.  Upon opening the box, he found
it contained a higher priced Pioneer compact disc  (CD)  player.   He  also
discovered the box did not contain the correct wires to connect it  in  his
car.  He did not return the Pioneer CD player, but did go back to the store
to obtain the correct wires.  While selecting his purchase,  the  applicant
saw a sales clerk mistakenly place an Audiovox CD player in a  box  for  an
Audiovox cassette tape player marked with a price  of  $139.00.   The  next
morning he returned to the store and purchased this item  for  the  $139.00
marked on the box.  The  correct  price  of  the  Audiovox  CD  player  was
$369.00.  As a result of these actions, he was  charged  with  larceny  and
convicted.

After his conviction, the applicant appealed.

The ruling stated the  government  offered  no  evidence  contrary  to  the
applicant's version of the facts for either "theft."  There was no evidence
offered that he switched prices on either item or placed the items  in  the
incorrect box.  The appeal concluded that however morally reprehensible  or
unethical  one  may  consider  his  conduct  in  taking  advantage  of  the
Exchange's mistake, his conduct was not criminal.   Therefore  his  charges
were dismissed because the applicant's conduct was not  larceny  under  any
possible theory and it was determined  that  a  rehearing  on  the  charged
larceny offenses was not feasible.  The court reversed and  set  aside  his
sentence.

On 2 April 1993, the Air Force Board for  Correction  of  Military  Records
(AFBCMR)  directed  the  applicant's  record  be   corrected   to   reflect
enlistment/promotion into the Regular Air Force  in  the  grade  of  senior
airman (SrA), with an effective date and date of rank (DOR) of 23  November
1990.  On 19 March 1996, the AFBCMR directed his records  be  corrected  to
show a waiver of his HYT of June 1998 for a period of nineteen months.

He is currently serving on active duty in the grade of MSgt with a date  of
rank of 1 March 2007.  He is an Air Force recruiter stationed in Ohio.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPPWB recommends denial.  DPPPWB states the applicant was returned to
active duty in the grade of SrA with a DOR of 23 November 1990.   Based  on
this DOR, the applicant would have normally been considered  for  promotion
to SSgt beginning with cycle 91A5.  However, since he received a  reduction
in rank and a bad conduct discharge, he was not considered for promotion to
SSgt until cycle 94A5 (when his conviction was overturned).  DPPPWB  states
as it is policy and procedure for individuals supplementally considered for
cycles missed for which they did not test, scores  from  the  most  current
cycle (94A5) are used and applied back to previous cycles.   The  applicant
has been provided  supplemental  consideration  for  missed  cycles,  using
policies and procedures afforded to others in similar situations,  and  was
rendered a nonselect for all cycles.  DPPPWB defers to DPPAE regarding  his
request for extension of HYT.

The complete DPPPWB evaluation, with attachments, is at Exhibit B.

AFPC/DPPAE recommends denial.  DPPAE states it would be  inappropriate  for
the AFBCMR to grant a two year HYT waiver for the applicant at  this  time.
As intended by the 2 April 1993 AFBCMR directive, the applicant should have
been considered and had his records further corrected if  he  was  eligible
for further promotions.  The applicant currently has a HYT of 8  June  2014
and this should remain in effect unless the applicant is  further  promoted
to the next higher grade under the enlisted promotion system.  DPPAE states
there is no error or injustice noted and it would be inappropriate to grant
HYT waivers to the next two higher grades.

The complete DPPAE evaluation, with attachments, is at Exhibit C.

AFPC/JA recommends denial.  JA states an airman's  entitlement  to  pay  is
based on statute.  With regard to "back pay" upon  disapproval  of  certain
court-martial sentences, federal statute entitles  a  member  on  appellate
leave whose sentence is set aside to  be  paid  for  the  period  of  leave
charged as excess leave, unless a rehearing or new trial is ordered  and  a
punitive discharge is included in  the  result  of  the  rehearing  and  is
executed.  Such a member shall be paid the amount  of  pay  and  allowances
that he or she is deemed to have accrued, reduced by the  total  amount  of
his income from wages,  salaries,  tips,  other  personal  service  income,
unemployment  compensation,  and  public  assistance  benefits   from   any
government agency during the period he is deemed to have  accrued  pay  and
allowances.  The applicant purports he never received "full back  pay"  but
acknowledged he was given the difference of military pay  and  his  outside
earnings.  He does not assert or  provide  any  evidence  to  indicate  the
amount he received was erroneous or based  on  erroneous  information.   By
statute, a member, under the circumstances presented by the applicant would
be entitled to "back pay" but it would be reduced by the  total  amount  of
his income.  Compliance with the  referenced  statute  constitutes  neither
error nor injustice.  JA states no issue of error or injustice is presented
by the applicant's petition.

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  14
September 2007 for review and comment within 30 days.   As  of  this  date,
this office has received no response (Exhibit D).

_________________________________________________________________

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 the
existence of error or injustice.  In our view, the issues  raised  by  the
applicant were more than adequately addressed by the  offices  of  primary
responsibilities  (OPR).  Therefore,  we  agree  with  the  opinions   and
recommendations of the Air Force OPRs and adopt  their  rationale  as  the
basis for our conclusion that the applicant  has  failed  to  sustain  his
burden of proof of the existence of either an error or injustice.

_________________________________________________________________

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 AFBCMR Docket Number BC-2007-
01665 in Executive Session on 3 January 2008, under the provisions  of  AFI
36-2603:

                 Mr.  Mr Michael K. Gallogly, Panel Chair
                 Mr.  Joseph D. Yount, Member
                 Ms.  Teri G. Spoutz, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 18 May 2007, w/atchs.
    Exhibit B.  Letter, AFPC/DPPPWB, dated 11 July 2007.
    Exhibit C.  Letter, AFPC/DPPAE, dated 14 June 2007, w/atchs.
    Exhibit D.  Letter, AFPC/JA, dated 31 August 2007.
    Exhibit E.  Letter, SAF/MRBR, dated 14 September 2007.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair