RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00161
		INDEX CODE:  110.00, 111.02, 126.04

	XXX-XX-XXXX	COUNSEL:  AMERICAN LEGION
		HEARING DESIRED:  NOT INDICATED

MANDATORY COMPLETION DATE:  17 OCTOBER 2007

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APPLICANT REQUESTS THAT:

1.  His general (under honorable conditions) discharge be upgraded to an honorable discharge.

2.  His grade of technical sergeant (E-6) be restored and his promotion to master sergeant (E-7) be reinstated with back pay and allowances until present.

3.  His DD Form 214 reflect he was separated because of retirement with 20 years service.  

4.  He be afforded the opportunity to test for senior master sergeant if allowed to finish his enlistment.  

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APPLICANT CONTENDS:

His discharge was disproportionate and unwarranted and contradicts the findings by the Air Force Audit Agency, OSI and the Inspector General’s office.  The actions taken by the command section clearly demonstrate their lack of ethics, integrity, and fairness toward a highly respected, dedicated, career oriented professional.  The narrative reason for separation “pattern of misconduct” is inaccurate, unfair, misleading and unjust.  

In support of his request, the applicant submits a personal statement and additional documents associated with the issues cited in his contentions.  The applicant’s submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 21 July 1981.  He was progressively promoted to the grade of technical sergeant (E‑6).  The following is a resume of his EPR ratings, commencing with the report closing 3 April 1995.

	PERIOD ENDING		PROMOTION RECOMMENDATION

	  03 APR 95			4
	  03 APR 96			4
	  03 APR 97			4
	  31 MAY 98			2 (referral)
	  31 May 99			4

On 27 June 1997, the applicant received a Letter of Reprimand (LOR) with an Unfavorable Information File (UIF) action for violating a “No Contact” order.

On 16 March 1998, the applicant received an LOR with a UIF action for dereliction of duty by grossly mismanaging the food procurement process.  

Records provided by the applicant reflect that he filed an Inspector General (IG) complaint alleging he was the victim of unfair treatment by his squadron commander in the form of disproportionate punishment by receiving an LOR; denial of promotion to master sergeant; and a referral Enlisted Performance Report (EPR) for mismanagement of the Nutritional Medicine Section.  The applicant alleged that the squadron commander did not hold accountable or take any action against the Officer in Charge (OIC), and/or the Noncommissioned Officer in Charge (NCOIC).  In a summary report completed on 14 October 1998, the Inquiry Officer (IO) concluded that the allegation regarding no action taken against the NCOIC for the mismanagement of the Nutritional Medicine Section was substantiated.  The IO’s recommendation was that should the applicant desire redress of the EPR, application should be made to the Air Force Evaluation Report Appeal Board (ERAB).  Records reflect the applicant did not exercise his right to appeal to the ERAB.

On 15 January 1999, nonjudicial punishment under Article 15, UCMJ was imposed on the applicant for failing to go for a mandatory urinalysis testing.  His commander imposed punishment in the in the amount of $150.00 dollars forfeiture of pay and fifteen (15) days of extra duty.  

On 15 June 1999, nonjudicial punishment under Article 15, UCMJ was imposed for violating a lawful general regulation by wrongfully using his government sponsored credit card for unauthorized purchases.  His commander imposed punishment in the form of a reduction in rank to the grade of staff sergeant (E-5).

On 12 July 1999, the applicant’s commander initiated discharge action for a Pattern or Misconduct in accordance with AFI 36-3208, para 5.50.2.  The applicant was notified of his commander’s recommendation and that a general discharge was being recommended. On 14 July 1999, the applicant requested an administrative board hearing and lengthy service probation consideration.  The board found the applicant had committed four acts of misconduct and recommended discharge with a general service characterization without probation and rehabilitation.  Based on the fact the applicant was credited with more than 19 years of active military service, he requested and was considered for lengthy service probation.  On 2 November 1999, the discharge authority approved a general discharge and recommended he not be offered lengthy service probation.  On 27 December 1999, the Secretary of the Air Force approved this recommendation and directed that the approved administrative discharge be executed.  

On 3 January 2000, the applicant was discharged with a general discharge.  He had served 19 years, 6 months and 19 days on active duty.

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AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends denial.  JAJM states the applicant seeks a set aside of only the 15 June 1999 nonjudicial punishment.  On 15 June 1999, the commander determined that the applicant had wrongfully used his government credit card and imposed punishment in the form of a reduction in rank to the grade of SSgt (E-5).  JAJM advises that members who wish to contest their commander’s determination or the severity of the punishment imposed may appeal to the next higher commander.  Records show that the applicant declined to exercise this right.  The appeal authority could have set aside the punishment, decreased its severity, or denied the appeal.  The AFLSA/JAJM evaluation is at Exhibit C.

HQ AFPC/DPPRS recommends denial.  DPPRS states that based upon the documentation on file, the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The applicant 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.

HQ AFPC/DPPRRP recommends denial.  DPPRRP advises the fact the applicant had more than 19 years of service entitled him to lengthy service consideration.  On 27 December 1999, the Secretary of the Air Force disapproved his request for lengthy service probation and ordered execution of the general discharge.  The AFPC/DPPRRP evaluation, with attachments, is at Exhibit E.  

HQ AFPC/DPPPWB recommends denial.  DPPPWB states the applicant was selected for promotion to master sergeant during cycle 96E7 which would have incremented on 1 July 1997.  However, on 11 June 1997, the applicant’s commander notified him that his promotion was being withheld because he was part of an OSI investigation.  On 25 June 1997, the applicant was issued a LOR for violation of a “No Contact Order” and as a result of this LOR a UIF was established on 1 August 1997.  The applicant received another LOR on 16 March 1998, which was also placed in the UIF, for dereliction of duties.  On 1 June 1998, the commander notified the applicant he was not recommending him for promotion for cycle 97E7.  The applicant then received a referral report for the period 4 April 1997 to 31 May 1998.  DPPPWB advises that in accordance with governing regulations, a referral report renders a member ineligible for promotion consideration for that particular cycle.  A member regains eligibility when they receive an EPR with a rating of “3” or higher, is not a referral report, and closes out on or before the Promotion Eligibility Cutoff Date (PECD).  The AFPC/DPPPWB evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to the applicant on 10 June 2003 for review and comment within 30 days (See Exhibit G).

On 23 October 2003, applicant’s counsel requested the case be administratively closed pending further review (Exhibit H).

On 28 October 2003, the applicant’s case was administratively closed in accordance with his request (Exhibit I).

On 18 April 2006, applicant’s counsel requested the applicant’s case be reopened (Exhibit J).

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant upgrading the applicant’s general discharge to honorable, his grade of technical sergeant be restored with promotion to master sergeant reinstated, his DD Form 214 reflect retirement and he be afforded the opportunity to test for senior master sergeant.  After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded he was erroneously or unjustly discharged.  In cases of this nature, we are not inclined to disturb the discretionary judgments of commanding officers in the absence of a strong showing of abuse of authority.  We have no such showing here.  Other than the assertions of the applicant, we have seen no evidence indicating the information in the available discharge case file was erroneous, his substantial rights were violated, or his commanders abused their discretionary authority.  Furthermore, the applicant has not provided any new evidence or information unavailable to his commanders during his discharge proceedings.  Applicant's assertions have been addressed by the appropriate Air Force offices and have not been rebutted by the applicant.  Therefore, in view of the above, we find no basis upon which to favorably consider this application.  

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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.
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The following members of the Board considered Docket Number BC-2006-00161 in Executive Session on 26 July 2006, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2006-00161 was considered:

   Exhibit A.  DD Form 149, dated 11 Apr 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 25 Mar 03.
   Exhibit D.  Letter, AFPC/DPPRS, dated 23 Apr 03..
   Exhibit E.  Letter, AFPC/DPPRRP, dated 14 May 03.
   Exhibit F.  Letter, HQ AFPC/DPPPWB, dated 30 May 03.
   Exhibit G.  Letter, SAF/MRBR, dated 10 Jun 03.
   Exhibit H.  Letter, American Legion, dated 23 Oct 03.
   Exhibit I.  Letter, SAF/MRBC, dated 28 Oct 03.
   Exhibit J.  Letter, American Legion, dated 18 Apr 06.
   Exhibit K.  Letter, AFOSI Report, dated 7 Jul 06, 
               WITHDRAWN.