RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02961
            INDEX CODES:  112.10, 131.09

            COUNSEL:  NONE

            HEARING DESIRED:  NO

TMCD:  21 JUL 08

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be allowed to reenlist and  retrain  into  the  Electrical  Systems
Career Field  (3E0X1);  or,  he  be  allowed  to  extend  his  current
enlistment until he completes his retraining  and  then  be  given  an
opportunity to reenlist.

_________________________________________________________________

APPLICANT CONTENDS THAT:

After completing the Return to Duty Program (RTDP) and being  accepted
back into the Air Force, he is now being  denied  the  opportunity  to
reenlist, which he believes is unjust.

In support of his appeal, the applicant provided a personal  statement
and supportive statements.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant’s available military personnel records indicate he  enlisted
in the Regular Air Force on 4 Dec 01 in the grade of airman basic.

On 26 Oct 06, he was convicted by special  court-martial  of  wrongful
use of cocaine and wrongful possession of a crack  pipe  with  cocaine
residue.  He was sentenced to a bad conduct discharge (BCD), reduction
from the grade of staff sergeant (E-5) to the grade of  airman  (E-2),
and six months confinement, but only so  much  of  the  sentence  that
called for a reduction to the grade of E-2, four  months  confinement,
and a BCD was approved.

On 30 Jan 07, he entered the RDTP and completed the program  on  8 May
07.

On 17 May 07, the Air Force Clemency and Parole  Board  suspended  the
BCD until 16 May 08.

Applicant was assigned to Mountain Home Air Force Base (AFB) on  3 Jun
07 in the grade of airman.  His date of separation (DOS) is 2 Jun 08.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letters prepared by the appropriate office of the Air
Force.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSOA recommends denial noting the RTDP  allows  selected  court-
martialed  enlisted   personnel   with   exceptional   potential   the
opportunity  to  return  to  active  duty  and  have  their   punitive
discharge, if adjudged, remitted.  Candidates who are returned to duty
will have the unexecuted part of any sentence suspended for up to  one
(1) year, or as determined by the Air Force Clemency and Parole Board.
 The suspended punishment, unless the suspension  is  sooner  vacated,
will be remitted at the end of the suspension period or upon the order
of the Air Force Clemency and Parole Board. These members  will  serve
at least one (1) year or until their expiration term of service (ETS),
whichever is longer.

AFPC/DPSOA indicated that although the applicant has been placed  back
on active duty under the RTDP, existing  personnel  policies  and  the
structure of the RTDP are  not  compatible  for  continued  retention.
Several factors clearly restrict the applicant from continued service-
these include the current RE code of 4E (Grade is  A1C  or  below  and
airman completed 31 or more months (55 months for six-year enlistees),
if a first term airman; or grade is A1C or below and the airman  is  a
second term or career airman).  The applicant is a  six-year  enlistee
and does not hold the rank of SrA or higher, nor  does  the  applicant
hold a valid AFSC to be eligible to  reenlist--both  basic  Air  Force
reenlistment eligibility requirements.  Additionally, the applicant is
serving a suspended punishment as his BCD is suspended until  May  08.
Therefore, the RE codes of 2L (Civil  court  charges  pending  for  an
offense for which the MCM authorizes confinement for the same or  most
closely related offense, or court-martial charges have been preferred,
or court-martial action is under appellate review) and 2M  (Serving  a
sentence or suspended sentence of court-martial;  or  separated  while
serving a sentence or suspended sentence of  court-martial)  apply  to
the applicant.

According to AFPC/DPSOA, it would be disadvantageous to the Air  Force
to   permit   any   applicant   in   the   RTDP    to    be    granted
retraining/reenlistment  priority  over  other   enlistees   with   no
convictions and who are not eligible to reenlist/retrain and hold  the
same 9A100 AFSC.  AFPC/DPSOA noted the commander's  statement  on  the
applicant's behalf and the positive progress the applicant  has  made.
However, they do not justify the course of action that  is  requested.
In  AFPC/DPSOA’s  view,  there  is  no  evidence  of  error,  as   his
ineligibility to reenlist is established by the governing instruction.
 Further, since the applicant's punitive discharge may be remitted  in
exchange for his successful participation in the RTDP, there  is  also
no injustice.

A complete copy of the AFPC/DPSOA evaluation, with attachments, is  at
Exhibit C.

AFPC/DPSOE indicated that their advisory is for informational purposes
only since the applicant did not request a  correction  to  his  rank.
Had he done so,  they  would  recommend  denial  because  he  had  not
demonstrated an error or  injustice.   According  to  AFPC/DPSOE,  the
governing instruction for promotions contains  no  provision  enabling
the  applicant  to  advance  in  rank   before   minimum   eligibility
requirements are met, or regain rank lost as a result  of  a  criminal
conviction.

A complete copy of the AFPC/DPSOE evaluation is at Exhibit D.

AFPC/DPSOA provided an addendum to their initial  advisory  indicating
the applicant should not gain favorable position over other  qualified
airmen for retraining.  He should be placed in  the  9A  (disqualified
airmen) AFSC and compete for a training seat along with his peers,  as
the loss of his current AFSC was within his control.  In addition, the
Board should direct the applicant's DOS be changed from 2 Jun 08 to  2
Nov 08 in order to fully compete during the entire  Fiscal  Year  2008
(FY08) cycle (30 Sep 08).  If the applicant is selected for retraining
under this option into an AFSC based on needs of the Air  Force,  then
automatic  retention  beyond  2  Nov  08  would  be  granted  to  meet
retainability requirements; or the Board may direct his return to  his
previously  held  AFSC.   Moreover,  there  is  no  way  to  determine
availability of training seats as they are filled  on  a  first  come,
first serve, competitive basis; and no applicant in the RTDP should be
placed in a position that provides preferential treatment  over  other
first-term airmen with no history, especially when there is  no  error
or injustice.

A complete copy of the AFPC/DPSOA evaluation is at Exhibit E.

AFPC/JA recommends denial indicating that  retraining  in  a  specific
AFSC is not a form of relief provided under the governing  instruction
or in past Board decisions.  With regard to
retention, no  issue  of  error  or  injustice  is  presented  by  the
applicant’s petition at this time.  The applicant  is  being  afforded
the opportunity to  have  his  punitive  discharge  remitted  and  the
benefit of an honorable characterization of service.  If he  completes
his suspended punishment,  reconsideration  of  his  petition  may  be
warranted.

A complete copy of the AFPC/JA evaluation,  with  attachments,  is  at
Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the  advisory  opinion  and  furnished  a  response
indicating, in summary, that he believes he is a valuable asset to the
Air Force.  He knows he made some poor decisions earlier in  his  life
and he is truly sorry for his  crime.   His  supporting  documentation
reveals he is a hard worker and a quick learner.  If he is allowed  to
reenlist, based on all the things he has been through and overcome, he
believes he would be a great supervisor of airmen.  Although he  would
like either to retrain into the Electrical Systems career field or his
previous Air Force Specialty Code (AFSC), he is willing  to  serve  in
any career field based on the needs of the Air Force.  He  just  wants
to remain in the Air Force and continue his career.

Applicant’s complete response, with attachments, is at Exhibit H.

_________________________________________________________________

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 error or injustice.   After  a  thorough  review  of  the
available  evidence,  we  are  persuaded  that  corrective  action  is
warranted in this case.  We note that after his conviction  by  court-
martial, the applicant was accepted into the RTDP, which is  a  highly
selective rehabilitation program.  It allows court-martialed  enlisted
personnel with exceptional potential the opportunity to return to duty
and have their punitive discharges remitted.  It  is  an  intense  and
rigorous program designed to bring about  a  positive  change  in  the
attitudes and conduct of the participants  and  make  them  productive
members of the Air Force.  We also  are  aware  that  entry  into  the
program itself does not guarantee success  and  not  every  individual
that enters and completes the program is returned to  duty.   However,
the applicant has not only successfully completed the  RTDP  but  also
has been returned to duty.  Because of this, and his  recommitment  to
the high standards of the Air Force, exemplary duty  performance,  and
the support he has received from his  commander  and  others,  we  are
convinced the applicant should be afforded relief that would allow him
to continue his military career and reenlist in the Air  Force  as  it
appears he desires to do.  Furthermore, the Air Force will be able  to
continue to utilize an  invested  resource.   In  addition,  based  on
clemency, we believe the applicant should  be  promoted  to  the  next
higher grade six months from the date of his completion of  the  RTDP.
Accordingly, we recommend the applicant’s records be corrected to  the
extent set forth below.   In  our  view,  the  recommended  corrective
action represents proper and fitting relief.

4.  The applicant’s request that he be allowed  to  retrain  into  the
Electrical Systems career field was noted.  It appears he is currently
assigned to that career field without formal  training.   However,  we
have been informally advised that his attendance at a technical school
for training in that career field has been waived.   In  view  of  the
above, we are of the opinion that the applicant’s request is now moot.
 Therefore, no further action is necessary.

_________________________________________________________________

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 first class effective
and with a date of rank of 8 Nov 07.

       b.  Competent  authority  approved  a  waiver  of   the   grade
requirement and Career  Job  Reservation  to  obtain  eligibility  for
reenlistment in the Regular Air Force, and that he  is  authorized  to
reenlist in the Regular Air Force for a period of four  years  at  the
expiration of his current term of service, as an exception to policy.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 27 Nov 07, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Debra K. Walker, Member
      Mr. Kurt R. LaFrance, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence pertaining to AFBCMR Docket Number  BC-
2007-02961 was considered:

     Exhibit A.  DD Form 149, dated 12 Sep 07, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPSOA, dated 19 Sep 07, w/atchs.
     Exhibit D.  Letter, AFPC/DPSOE, dated 20 Sep 07.
     Exhibit E.  Letter, AFPC/DPSOA, dated 10 Oct 07.
     Exhibit F.  Letter, AFPC/JA, dated 24 Oct 07, w/atchs.
     Exhibit G.  Letter, SAF/MRBR, dated  26 Oct 07.
     Exhibit H.  Letter, applicant, dated 14 Nov 07, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Chair




AFBCMR BC-2007-02961




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 , be corrected to show that:

            a.  He was promoted to the grade of airman first class
effective and with a date of rank of 8 November 2007.

            b.  Competent authority approved a waiver of the grade
requirement and Career Job Reservation to obtain eligibility for
reenlistment in the Regular Air Force, and that he is authorized to
reenlist in the Regular Air Force for a period of four years at the
expiration of his current term of service, as an exception to policy.






    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency