RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03256
		INDEX CODE:  110.00
		COUNSEL:  NONE
			        
		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His reason for discharge be changed to retirement.  

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APPLICANT CONTENDS THAT:

He had over 18 ½ years of honorable service and a number of favorable communications, medals and awards in his record prior to his misconduct.  His behavior was consistent with the Air Force’s interest in maintaining good order and discipline.  On 29 January 2001, the government withdrew court-martial proceedings.  He was never relieved as a senior Noncommissioned Officer because he fulfilled his duties as Dormitory Manager until 12 February 2001.  He later left the dormitories to return to the flight line.  He was issued a security badge and in-processed as Section Shift chief and performed these duties until his discharge on 8 March 2002.  

He believes his commander was unfair or things were uncertain to him because his attorney informed him that if he made it to 20 years of service, he would receive his retirement.  Due to Stop Loss, he was told to pick a retirement date after June 2002, so he elected 1 September 2002.  His commander didn’t sign his retirement form until 26 October 2001.  It seems to him that the government stalled for time to write letters regarding his discharge versus his retirement.  If he completed his 20 years and was eligible for retirement, he should have been able to submit his retirement paperwork and receive his benefits.  

He believes the punishment he received was too harsh because of the financial losses.  He worked many 12-hour days/nights before and after September 11 and doing whatever the Air Force needed to complete the mission.  Despite the administrative discharge board pending, his loyalty or attention to duty never faltered.  He should be entitled to change the type of separation to retirement. 

In support of his application, the applicant provides a personal statement and documents associated with his discharge, a copy of his DD Form 214, disclosure of his financial loss due to his discharge, a copy of a notification for WAPS promotion testing cycle for 02E8, and a copy of AF Form 911, Senior Enlisted Performance Report, for the period 3 November 2000 through 2 November 2001.   His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Records indicate applicant’s Total Active Federal Military Service Date as 28 September 1981.  The applicant continued to enlist with his last reenlistment occurring on 27 December 1999, in the grade of master sergeant (E-7), for a period of 5 years.  The following is a resume of his EPR ratings, commencing with the report closing 02 November 1997.

	PERIOD ENDING		PROMOTION RECOMMENDATION

	  02 NOV 97			5
	  02 NOV 98			5
	  02 NOV 99			5
	  02 NOV 00			5
	  02 NOV 01			1 (referral)

On 11 December 1981, nonjudicial punishment was imposed on the applicant under Article 15, UCMJ, based on the allegation that on or about 21 November 1981, he stole a pair of sunglasses, of a value of about $8.00, the property of the Army-Air Force Exchange Service.  He was ordered to forfeit $250.00 per month for 2 months and to undergo 14 consecutive days of correctional custody.  However, the forfeiture of pay in excess of $150.00 per month for two months and correctional custody in excess of 7 consecutive days was suspended until 20 March 1982, at which time, unless sooner vacated, it would be remitted without further action.  

On 23 June 1994, the applicant received a letter of counseling for having an over-due account with the Travis Enlisted Club in the amount of $315.00.  

On 7 June 1997, the applicant received a Letter of Counseling based on the allegation that unauthorized charges were made on his American Express charge card totaling approximately $1,076.  Applicant agreed to reimburse American Express in monthly payments until the debt was repaid.  

In June 2000, the applicant’s commander was advised that a urine specimen provided by the applicant via a random urinalysis on 13 June 2000, tested positive for Tetrahydrocannabinol (THC) at 25 ng/ml.

On 26 March 2001, the applicant’s commander initiated administrative separation proceedings against him for misconduct, drug abuse.  The applicant was advised of his rights in the matter and that an under other than honorable conditions discharge would be recommended.  After consulting military legal counsel, the applicant elected a hearing before an administrative discharge board.  On 15 June 2001, an Administrative Board Hearing was held and found the applicant subject to discharge for Misconduct, Drug Abuse.  In a legal review of the discharge case file, dated 18 July 2001, the staff judge advocate found the file legally sufficient and recommended that he be discharged with a general discharge without the offer of probation and rehabilitation.  On 23 July 2001, the discharge authority approved the recommendation for discharge by reason of drug abuse and directed that he be given a general discharge without probation and rehabilitation.  Based on the fact that he was credited with more than 19 years of active military service, he requested and was considered for lengthy service probation under the provisions of AFI 36-3208, Chapter 6, Section F.  However, on 10 October 2001, the lengthy service consideration request was returned without action from the Secretary of the Air Force due to the applicant reaching retirement eligibility.  On 28 September 2001, the applicant became retirement eligible and applied for retirement effective 1 September 2002.  On 26 November 2001, the commander recommended that his application for retirement be denied and that discharge be executed with a general service characterization.  On 7 February 2002, the Secretary of the Air Force approved this recommendation and directed that the approved administrative discharge be executed.  

On 8 March 2002, the applicant was discharged with a general (under honorable conditions) discharge.  He had served 20 years, 5 months and 11 days on active duty.

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AIR FORCE EVALUATION:

AFPC/JA recommends the application be denied.  JA states that none of the factors cited by the applicant provides sufficient basis to grant his request.  He wrongfully used marijuana, a serious violation of the Uniform code of Military Justice.  Even though the process for resolving the case against him was somewhat lengthy, a review of the case file shows no evidence of unfairness or injustice.  JA states that an administrative discharge board heard his case and recommended his discharge from the Air Force.  His case was forwarded to the Secretary of the Air Force for lengthy service review and returned without action. The Secretary of the Air Force reviewed and denied his application for retirement in lieu of discharge.  The AFPC/JA evaluation is at Exhibit C.

AFPC/DPPRRP recommends the application be denied.  DPPRRP states that there were no injustices or irregularities that occurred in the dual action retirement/discharge processing.  On 7 February 2002, the Secretary of the Air Force disapproved the applicant’s application for retirement and the general discharge ordered by the discharge board was executed.  The AFPC/DPPRRP evaluation, with attachments, is at Exhibit D.

AFPC/DPPRS recommends the application be denied.  DPPRS states that based on the documentation on file, they believe his discharge was consistent with the procedural and substantive requirements of the discharge regulation.  He did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  The AFPC/DPPRS evaluation is at Exhibit D.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responds by stating that his attorney improperly informed him at the end of his administrative board decision that he would receive his retirement.  His attorney told him not to worry and just keep his nose clean up until his 20-year anniversary.  On 28 September 2001, he became retirement eligible and tried to apply for retirement but his commander informed him that his career field was on hold for Stop Loss and she wouldn’t sign his retirement application.  He was informed by the retirements section that he could apply for retirement after 1 June 2002, because of Stop Loss; therefore, he chose the 1 September 2002 retirement date.  

Applicant states that the last two and a half years have been very difficult since he is trying to support a wife, three children and a son with a very serious medical condition.  He has been looking very hard for work but found out when applying for the Ohio Corrections that he was in the FBI’s computer for a charge of Use/Possession of a Controlled Substance.  He believes that this has caused hardship for his family because charges were still valid in the FBI’s computer after he was discharged from the Air Force and while being on active duty with a flight line security clearance.  If his unit thought he was a drug abuser, why did they reinstate his security badge and have him supervise 90 people.  If the government could not convict him in a court-martial, whey did they mislead him for so long and not recommend him for retirement.  He was even able to test for promotion in February 2002.  Applicant states that he is angry at the Air Force for treating him this way when he has given so much of his life to the Air Force.  He worked hard for 20 years and 5 months for his country and the Air Force.  Applicant’s submission, with attachments, is at Exhibit G.

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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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of injustice warranting the applicant’s discharge be changed to retirement.  The applicant requests that his involuntary discharge be changed to a retirement for length of service.  In response to the applicant’s appeal, the Staff Judge Advocate, Air Force Personnel Center, in her advisory of 18 February 2003, states that the applicant’s lengthy service and his service on the flight line while facing court-martial charges were mitigating factors that were known to the discharge board and the Secretary of the Air Force when they reviewed his case.  Accordingly, the Staff Judge Advocate believes that there is no error or injustice to be corrected as to the reason for the applicant’s discharge.  After reviewing the evidence of record and noting the sequence of events that led to the applicant’s discharge, the majority of the Board believes that an injustice was done to the applicant.  The Board majority’s determination in this matter is based on the fact that despite the fact that he was undergoing court-martial and administrative discharge proceedings; he continued to fulfill his duties as Dormitory Manager and later as shift chief on the flight line.  Indeed, prior to the report of the infraction that led to his separation, with the exception of several minor infractions, he had accrued a record of exceptional service.  It was not until his discharge from the Air Force that he was taken from the flight line - in essence a form of probation and rehabilitation.  The applicant asserts that he tried to submit his retirement application; however, his commander stated she couldn’t sign his retirement application because of Stop Loss and eventually did so at a later date.  In this respect, the Board majority finds the considerable lapse of time for resolving his case troubling, particularly in view of what was at stake for the applicant, i.e., retirement.  In view of the totality of the circumstances presented in this case, the Board majority believes that to deprive the applicant of his entitlement to receive his retirement benefits constitutes an injustice.  Based on this belief, it is the Board majority’s opinion that the termination of his service without retirement benefits is unjust and by correcting the record to show he was not discharged because of misconduct on 8 March 2002 but was retired for length of service on 1 March 2002 (since the law requires that active duty members retire at the beginning of the month), the applicant will be afforded proper and fitting relief.  In the absence of persuasive evidence that the evidence contained in the discharge case file is erroneous we are not inclined to recommend a change to the applicant’s service characterization of “under honorable conditions.”

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that he was not discharged on 8 March 2002, under the provisions of AFI 36-3208 but rather, he was relieved from active duty on 28 February 2002 and, effective 1 March 2002, he was retired for length of service.  
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The following members of the Board considered this application in Executive Session on 28 May 2003, under the provisions of AFI 36-2603:

Ms. XXXX and Ms. XXXX voted to correct the record as recommended.  Mr. XXXX voted to deny but did not desire to submit a Minority Report. The following documentary evidence was considered:

    Exhibit A.  DD Form 149 dated, 16 October 2002.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 18 Feb 03.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 22 Jan 03 w/atchs.
    Exhibit E.  Letter, AFPC/DPPRS, dated 10 Dec 02.
    Exhibit F.  Letter, SAF/MRBR, dated 21 Feb 03.
    Exhibit G.  Letter, Applicant, dated 10 Mar 03 w/atchs.

 

AFBCMR 02-03256

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 XXXXXXXXXXXXX, be corrected to show that he was not discharged on 8 March 2002, under the provisions of AFI 36-3208 but rather, he was relieved from active duty on 28 February 2002 and, effective 1 March 2002, he was retired for length of service.