RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2002-00882
			INDEX CODE:  126.00
			COUNSEL:  NONE

   							HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

Her Article 15 be set aside so that her discharge can be upgraded so that she may qualify for Montgomery GI Bill (MGIB) benefits.

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APPLICANT CONTENDS THAT:

She received an Article 15 for not having proper headcovering while wearing a parka hood.  Many people, including her officer-in-charge, were not aware of the policy and did the same thing she did.  After receiving her Article 15, the hospital printed the rule in their newspaper, because it had become commonplace for people to do this.  Although, the Article 15 was the reason for her discharge, her main problem was weight.

She was young and naïve at the time of this incident and did not fight it as she should have.  Applicant states that she has been a good citizen since leaving the service and is currently attending college and receiving a 4.0 grade point average.

She is currently pursuing a Bachelor’s Degree in Healthcare Administration and the G I Bill to help finance her schooling.

In support of the application, the applicant submits a DD Form 214 (Certificate of Release or Discharge from active duty, including one that was voided); AF Form 3070, Record of Nonjudicial Punishment Proceedings, dated 3 Mar 93; AF Form 366, Record of Proceeding of Vacation of Suspended Nonjudicial Punishment, dated 25 Jun 93; copies of two Enlisted Performance Reports, closeout dates 1 Jun 93 (Referral report) and 29 Sep 92, respectively.

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

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STATEMENT OF FACTS:

On 31 Jan 91, the applicant enlisted in the Regular Air Force in the grade of airman basic (AB/E-1), for a period of four years.  She received two performance reports with overall evaluation ratings of four and two (referral report), respectively.  Applicant was progressively promoted to the grade of airman first class, with an effective date and date of rank of 1 Nov 92.

The applicant received a Letter of Reprimand on 21 Nov 91, for failure to obey a lawful order given by her commander by failing to report to the gym for mandatory fitness training on or about 23 Aug 91 through 13 Nov 91.  She received a second LOR on 10 Jan 93 for the same misconduct between 2 through 30 Dec 92.  An Unfavorable Information File was established on 16 Jan 93.  

On or about 3 Feb 93, applicant failed to obey a general lawful regulation, AFR 35-10, by going outside without the proper headgear and by wearing an Air Force uniform without the proper grade insignia.  She received an Article 15 and her punishment consisted of a suspended reduction in grade to airman, 14 days of restriction, 14 days of extra duty, and forfeiture of $195 pay.  On 21 May 93, applicant wrote a check to the AAFES in the amount of $25.95 that was returned for nonsufficient funds.  For this misconduct, the squadron commander vacated the suspended reduction in grade on 23 Jun 93.  The applicant’s new date of rank as airman basic was effective 26 Feb 93.

The record also reflects that on 9 Jul 91, the applicant was entered into the Weight Management Program (WMP) when her body fat was measured at 38%, 10% above her maximum allowable body fat (MABF) standard.  Her first failure following entrance into Phase I occurred on 23 Oct 91, when her body fat measurement (BFM) was 39%, a 6% increase from her 23 Sep 91 measurement for which she received a letter of counseling.  Her second failure came on 6 Dec 91, when her body fat measurement increased to 40%, a 1% increase over her 23 Oct 91 measurement.  She received an LOR on 9 Dec 91, for failure to lose the required 2% body fat per month.  On 16 Jun 92, she failed a third time when her BFM was 33%, a 6% increase from her 15 May 92 BFM, and she received another LOR.  On 10 Nov 93, while in the 1-Year Probation Period, her monthly BFM was 29%, a 3% increase from her 22 Feb 93 BFM.  For this she was reentered into Phase I and received an LOR on 24 Nov 93.

On 13 Dec 93, while in Phase I, her monthly BFM was 34%, a 5% body fat increase and 9 pounds increase in body weight.  For this failure, she received an LOR, was placed on a control roster on 16 Dec 93, and was demoted to the grade of airman basic (AB/E-1) on 30 Dec 93.  The LOR was filed in her existing UIF.

On 5 Jan 94, the squadron commander initiated administrative discharge action against the applicant for Minor Disciplinary Infractions and Exceeding Body Fat Standards. The specific reasons for the proposed action were the incidents cited above.

On 5 Jan 94, applicant acknowledged receipt of the discharge notification and that military legal counsel had been made available to her.  On 10 Jan 94, after consulting with counsel and having been advised of her rights, applicant submitted a written statement in her own behalf.  On 12 Jan 94, the Staff Judge Advocate found the case file to be legally sufficient to support a general discharge without probation and rehabilitation.  The discharge authority approved a general discharge, without probation and rehabilitation.

On 14 Jan 94, the applicant was discharged under the provisions of AFR 39-10, by reason of misconduct, with service characterized as general (under honorable conditions).  She served 2 years, 11 months, and 14 days on active duty. 

On 15 Aug 02, the Air Force Discharge Review Board (AFDRB) granted the applicant’s request to have her discharge upgraded to honorable.  In regards to the reason and authority, the AFDRB found that neither evidence of record, nor that provided by the applicant, substantiated an inequity or impropriety, which would justify a change in the reason for separation or authority (see AFDRB Hearing Record at Exhibit C).

On 23 Sep 02, HQ AFPC/DPPRSP corrected the applicant’s DD Form 214 to reflect her characterization of service as honorable.

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AIR FORCE EVALUATION:

AFLSA/JAJM addressed the applicant’s request in regards to the 26 Feb 93 Article 15 and recommended no relief be granted.  They state that the applicant maintains that the Article 15 was not appropriate because others thought that wearing a parka without proper headgear was acceptable.  She asserts that the reason for the Article 15 was due to her weight control problems, not the incident regarding headgear.

JAJM indicates that nonjudicial punishment is permitted by Article 15, UCMJ, and governed by the Manual for Courts-Martial and Air Force Instruction 51-202.  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.  Service members first must be notified by their commanders of the nature of the charged offense, the evidence supporting the offense, and of the commander’s intent to impose nonjudicial punishment.  The service member may then consult with a defense counsel to determine whether to accept nonjudicial punishment proceedings or demand trial by court-martial.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.

JAJM states by electing to resolve the allegation in the nonjudicial forum, applicant vested her commander with the responsibility to decide whether she had committed the offenses.  The commander had to weigh all the evidence, including the applicant’s assertions, and make her decision.  In this case, the commander determined that the applicant had committed the alleged offenses.  Applicant’s response to the Article 15 failed to convince her commander of her innocence and the applicant chose not to appeal the punishment.

A set aside should only be granted when the evidence demonstrates an error or a clear injustice.  The evidence presented by the applicant is insufficient to warrant setting aside the Article 15 action, and does not demonstrate an equitable basis for relief.  The applicant has provided no evidence of a clear error or injustice related to the nonjudicial punishment action.

A complete copy of the JAJM evaluation is at Exhibit D.

HQ AFPC/DPPAT addressed the applicant’s request for Montgomery GI Bill (MGIB) benefits.  They state that the MGIB requires that an individual receive an Honorable discharge and serve a particular amount of active duty in order to qualify for benefits.  The amount of required active duty varies with the separation reason.  For example, an individual discharged for hardship may qualify for a month-to-month benefit after serving a few months while an individual discharged for weight control will not qualify for benefits unless he or she serves a full term of service.  Individuals discharged for misconduct must serve a full term.

They provided no recommendation.  They further state if the Article 15 is to be set aside and the discharge upgraded to honorable, the applicant’s reason for separation would also have to be changed so she could qualify for the MGIB benefits.  Considering the time the applicant spent on active duty, the only possible separation reason would seem to be “Miscellaneous Reasons/General Reasons.”

A complete copy of DPPAT evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force Evaluations were forwarded to the applicant on 19 Jul 02 for review and comment within 30 days.  As of this date, this office has received no response (Exhibit F).

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice warranting partial relief.  The discharge appears to be in compliance with the governing directives and we find no evidence to indicate that her separation from the Air Force was inappropriate or that the applicant was not afforded all the rights to which entitled at the time of discharge.  However, the Board noted that her discharge was based on minor disciplinary infractions and Weight Management Program (WMP) failures.  The Air Force Discharge Review Board (AFDRB) determined that applicant’s discharge was too harsh and upgraded her discharge to honorable.  After a thorough review of the evidence of record, it is the opinion of the Board that most of the misconduct which led to applicant’s discharge was associated with her failure in the WMP.   The majority of the Board believes that a narrative reason for separation of “weight control failure” more accurately describes her reason for separation.  In view of the above, the majority of the Board recommends her records be amended to the extent indicated below.

4.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s nonjudicial punishment.  We noted applicant’s complete submission in judging the merits of the case.  However, we agree with the comments of the Military Justice Division (AFLSA/JAJM) and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The commander has discretionary authority to impose nonjudicial punishment under Article 15, UCMJ, when she concluded that reliable evidence existed to indicate an offense was committed.  When offered the Article 15, applicant had an opportunity to establish her innocence by demanding trial by court-martial.  However, she chose not to pursue this avenue and accepted the Article 15 instead.  Applicant has not provided any evidence to sufficiently convince the Board that the commander abused her discretionary authority in imposing the Article 15 punishment.  Therefore, we conclude that no basis exists to recommend favorable action on applicant’s request to set aside the Article 15.

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RECOMMENDATION OF THE BOARD

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 14 January 1994, she was discharged by reason of “Weight Control Failure,” with Separation Program Designator (SPD) code “JCR.”

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The following members of the Board considered AFBCMR Docket Number BC-2002-00882 in Executive Session on 6 March 2003 and 10 April 2003, under the provisions of AFI 36-2603:

All members of the Board voted to deny applicant’s request to set aside the Article 15.  The majority of the Board voted to grant the applicant partial relief in the form of changing her reason for separation to “Weight Control Failure.”  Mr. Hinton voted to change the reason for separation to “miscellaneous reasons/general reasons” so that she may qualify for the MGIB and did not desire to submit a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  AFDRB Hearing Record, dated 15 Aug 02.
    Exhibit D.  Letter, AFLSA/JAJM, dated 21 Jun 02.
    Exhibit E.  Letter, HQ AFPC/DPPAT, dated 19 Apr 02.
    Exhibit F.  Letter, SAF/MRBR, dated 19 Jul 02.

							

AFBCMR BC-2002-00882

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
		CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Case of APPLICANT

	I have carefully considered all the circumstances of this case and do not agree with the recommendation of the majority of the Panel that the applicant’s reason for separation should be changed from “Misconduct” to “Weight Control Failure.”

	The record reflects that the applicant was discharged for misconduct.  However, the Board majority noted that most of the incidents of misconduct were related to her unsatisfactory progress on the Weight Management Program and failures to report for mandatory fitness training.  The Board majority believed that changing the reason for separation to “Weight Control Failure” more accurately reflected the basis for her involuntary separation.  The minority member disagreed.  He noted that the Air Force Discharge Review Board had found the characterization of the applicant’s discharge too harsh and upgraded it to honorable.  Furthermore, the applicant had served over 35 months of her enlistment contract.  In view of this, the minority member recommended that the reason for separation be changed to “Miscellaneous/General Reasons.”

	I agree with the minority member and direct that the applicant’s record be corrected to show that the reason for her separation was “Miscellaneous/General Reasons.”

AFBCMR BC-2002-00882
INDEX CODE:  110.00

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 APPLICANT be corrected to show that on 14 January 1994, she was discharged by reason of “Miscellaneous/General Reasons,” with Separation Program Designator (SPD) code “KND.”