RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2003-01739
			INDEX CODE:  108.09
			COUNSEL:  NONE

			HEARING DESIRED:  YES
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APPLICANT REQUESTS THAT:

He be reinstated to active duty in the grade of captain with compensation for lost wages and remission of his debt owed due to overpayment by the government.

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APPLICANT CONTENDS THAT:

He was dealt an injustice because all of the evidence provided in support of his defense for two separate incidents over a four-year period was not taken into consideration.  Specifically information concerning an AWOL charge that he was alleged to have committed while assigned to Barksdale Air Force, LA. 

In support of this application, the applicant submits a personal statement, three character reference statements, copies of two Security Forces police blotters, a copy of an Alexandria, VA police blotter, and copies of other documents pertaining to his case.

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

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STATEMENT OF FACTS:

The applicant was commissioned an officer in the Reserve of the Air Force on 7 February 1997.  He was progressively promoted to the grade of captain with an effective date and date of rank of 7 February 2001.  

On 25 July 2001, applicant was notified by his commander that he was initiating action in accordance with AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers.  The reason for the action was that the applicant received nonjudicial punishment in March 1998 for leaving his duty section without permission, being absent without leave (AWOL) on 29 November 1997 and in November 1997; wrongfully and dishonorably violating a car rental agreement by informing the agent he was driving to Dallas TX when in fact, he drove to VA; between 11 May 2000 and 17 December 2000, he failed to obey a lawful regulation by dating an enlisted member; and on 12 January 2001, he made an official false statement by telling his supervisor he was in Raleigh, NC, when in fact he was at Shaw AFB, SC.  At the time applicant was a probationary officer (less than five years of active commissioned service).  Because the show cause authority and his commander recommended a general discharge, he was not entitled to a Board of Inquiry (BOI).  Member consulted with legal counsel and submitted statements for consideration; however, he declined to submit a resignation.  The 9AF/JA reviewed the case and found it legally sufficient to support the discharge.  As recommended by AF/JA, DPPRS forwarded the case to the Air Force Personnel Board through the AF/JAG.  On 14 January 2002, the Secretary of the Air Force Designee ordered a general discharge with recoupment of the pro rata share of the cost of tuition assistance.  He was discharged on 24 January 2002 with a general (under honorable conditions) discharge.  He served 4 years, 11 months and 17 days as a commissioned officer.  He had previously served 10 years, 6 months and 12 days as an enlisted member.

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AIR FORCE EVALUATION:

DPPRS recommends denial.  Based upon the documentation on file, DPPRS believes 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 process and has provided no facts warranting any upgrade of his discharge.  The DPPRS evaluation is at Exhibit C.

DFAS-POCC/DE recommends denial of the applicant's request to cancel his out of service debt.  The applicant separated on 24 January 2002 with an overpayment of $8,951.26.  Through administrative error the member's pay account was not closed until April 2002.  He received direct deposit payments on February 15, March 1, March 15, and April 1, 2002 totaling $7,909.03.  Garnishments were paid to North Carolina Child Support Division, on the member's behalf, in the amount of $425.00 each month for March and April 2002.  

The applicant's entitlements total $7,648.05 less deductions of $4,256.26, resulting in $3,391.79 due to him.  However, payments total $12,343.05, resulted in an $8,951.26 overpayment.  The Remission and Waiver Branch were contacted and they indicated that if they receive the applicant's waiver, they would recommend a waiver of $192.23 and denial of $8,759.03 based on criteria provided in 10 U.S.C. section 2774.

DFAS-POCC/DE evaluation, with attachments, is at Exhibit D. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force Evaluations were forwarded to the applicant on 3 July 2003 for review and response.  As of this date, this office has received no response (Exhibit E).

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice that would warrant corrective action.  We see no evidence of an error in this case and after careful consideration of the applicant's request and the available evidence of record, we are not persuaded that he has been the victim of an injustice.  Evidence has not been provided which would lead us to believe that the actions taken to affect his discharge were improper or contrary to the provisions of the governing regulations, that the decision to discharge him was based on factors other than his own documented pattern of misconduct, or that his commander abused his discretionary authority in doing so.  Since we find no error or injustice with respect to his discharge action, we do not believe favorable consideration of his request for compensation for lost wages and remission of his indebtedness is warranted.  We note that the Defense Finance and Accounting Service has indicated that if the applicant were to apply for a remission of his indebtedness it would be recommended that a portion of his request would receive a favorable recommendation.  However, he must first apply for a remission of his indebtedness through the appropriate channels.  Therefore, 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.  In the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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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 AFBCMR Docket Number BC-2003-1739 in Executive Session on 13 Aug 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 1 Jul 03.
    Exhibit D.  Letter, DFAS-POCC/DE, dated 26 Jun 03, w/atchs
    Exhibit E.  Letter, SAF/MRBR, dated 3 Jul 03.

                                   Panel Chair