RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBERS: BC-2011-00825 

COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His Enlisted Performance Report (EPR), rendered for the 
period 15 October 2009 through 25 July 2010, be voided and 
removed from his records. 

 

2. His prior grade of staff sergeant (SSgt) (E-5) be restored; 
or, as an alternative, his previous grade of senior airman (SrA) 
(E-4) be restored. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He successfully completed the Return to Duty Program (RDTP), and 
is now facing his high year of tenure (HYT). He would like an 
opportunity to test for SSgt before reaching his HYT. As a 
result of his training and experience as a non-commissioned 
officer (NCO), he has the right mindset and can influence his 
peers. 

 

In support of his appeal, the applicant provides several 
character references. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant entered active duty on 1 January 2001. After 
attending the Aerospace Propulsion Course, he was progressively 
promoted to the grade of SSgt. 

 

The applicant was court-martialed on 29 June 2010 for wrongfully 
using the controlled substances Oxycodone and Hydrocodone. He 
was acquitted of distributing Hydrocodone. As a result, he 
received punishment consisting of a reprimand, reduction in grade 
to airman first class (A1C) (E-3), forfeiture of $500 pay per 
month for six months, and three months hard labor without 
confinement. The applicant subsequently volunteered, and was 
allowed to participate in the RTDP. He successfully completed 


the RTDP and was returned to duty in the grade of A1C with a date 
of rank and effective date of 21 May 2010. 

 

As a result of his actions, the applicant received a referral EPR 
for the period 15 October 2009 through 25 July 2010. 

 

The remaining relevant facts, extracted from the applicant’s 
military service records, are contained in the evaluations by the 
Air Force offices of primary responsibility at Exhibits C and D. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSOE recommends denying the applicant’s request to restore 
his rank of SSgt or SrA. DPSOE states that while the applicant 
has successfully completed the RTDP and provided several letters 
in support of his request, no error or injustice occurred in his 
case. A review of his record reveals he received a referral EPR 
for the period 15 October 2009 through 25 June 2010 which is an 
ineligibility condition for promotion in accordance with Air 
Force Instruction 36-2502, Table 1.1, Rule 22. He will not be 
eligible for promotion to SrA until he receives a non-referral 
report, has 20 months time-in-grade (21 January 2012), and is 
recommended by his commander. Based on his date of rank (DOR), 
he will be eligible for promotion consideration to SSgt during 
cycle 12E5 (promotions 1 September 2012 to 1 August 2013). The 
DOS requirement for this cycle is 1 September 2012 or later. 
Since his HYT is 17 November 2013, he will have the opportunity 
to test for SSgt provided he is otherwise eligible and 
recommended by his commander. 

 

DPSOE indicates the RTDP is the Secretarial implementation of 
Title 10, United States Code, Section 953 (Remission or 
suspension of sentence; restoration to duty; reenlistment). The 
RTDP gives airman an opportunity to be returned to active duty 
and have a punitive discharge, if adjudged, remitted; however, it 
does not provide for the restoration of rank. Completion of the 
RTDP does not even guarantee return to duty. All that is 
required is that airman returned to duty be allowed to serve at 
least one year before separation. 

 

The complete DPSOE evaluation is at Exhibit C. 

 

AFPC/JA recommends denial. JA states that under the RTDP, only 
the unexecuted part of a court-martial sentence may be remitted 
upon successful completion of the program. To be eligible for 
entry into the program, an applicant cannot have an executed 
discharge, be eligible to retire, or be past their expiration 
term of service (ETS). Under the UCMJ, reductions in grade take 
effect upon the date of approval by the convening authority. In 
this case, given that the special court-martial convening 


authority approved the sentence imposed by the court, the only 
part of the applicant’s sentence that remained unexecuted upon 
his entry into the RTDP was his sentence to hard labor without 
confinement. Although the convening authority approved 
applicant’s clemency request that his sentence to hard labor 
without confinement be carried out in the RTDP, there is no 
provision in either the statute or the Air Force Instructions 
that mandates the reinstatement of rank. Given the fact the 
applicant’s current HYT is 17 November 2013; he will still have 
an opportunity to test for SSgt. Under the circumstances, it 
does not appear that restoration of rank is appropriate as the 
reduction does not “shock the sense of justice.” Reductions in 
rank are common in court-martial and non-judicial punishment 
cases and a grant of clemency in this case was exercised in 
permitting the applicant to serve his sentence in the RTDP at the 
reduced rank adjudged by the court and approved by the convening 
authority. 

 

The complete 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 22 July 2011 for review and comment within 30 days. 
As of this date, this office has received no response. 

 

_________________________________________________________________ 

 

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. We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinions and recommendations 
of the Air Force offices of primary responsibility and adopt 
their rationale as the basis for our conclusion that the 
applicant has not been the victim of an error or injustice. 
Therefore, in the absence of evidence to the contrary, we find no 
basis to recommend granting the relief sought in this 
application. 

 

_________________________________________________________________ 

 


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-2011-00825 in Executive Session on 1 November 2011, 
under the provisions of AFI 36-2603: 

 

 

 

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2011-00825: 

 

Exhibit A. DD Forms 149, dated 28 Feb 11, w/atchs. 

Exhibit B. Applicant's Master Personnel Records. 

Exhibit C. Letter, AFPC/DPSOE, dated 13 Jun 11. 

Exhibit D. Letter, AFPC/JA, dated 27 Jun 11. 

Exhibit E. Letter, SAF/MRBR, dated 22 Jul 11. 

 

 

 

 

Panel Chair