RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03240
		INDEX CODE:  110.02

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His reenlistment (RE) code be changed to one that would allow him to reenlist.

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APPLICANT CONTENDS THAT:

He believes that the Article 15 punishment he received, that led to his eventual discharge, was excessive.  He states the Article 15 received for disobeying a direct order shouldn’t have been given at all.  Only the base commander or support group commander has the authority to suspend driving privileges.  Air Force Instruction (AFI) 31-204 and Space Wing Instruction (SWI) 31-109 state that any type of formal suspension or revocation of driving privileges must be conferred by written notice.  He was given a verbal statement only which he claims interferes with his private rights and/or personal affairs. 

He believes he would still be serving in the USAF today if the proceedings had not been executed.  It should not have been executed in the first place for such a minor offense (if an offense at all), and not by one who played the role of accuser, fact finder, witness, and traffic officer.  It should be considered a breach of integrity and an injustice.

He understands the other Article 15 for getting a tongue ring and he has learned from that experience.  He has exhausted all other resources in fixing this problem by writing two letters to two senators whose best advice was to apply to the Board of Corrections.  He plans to finish college at Sacramento State with a bachelor’s in computer engineering and then pursue a career with the US Marines.

In support of his appeal, the applicant has provided a personal statement and copies of two legal counsel’s responses to his Article 15.

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

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STATEMENT OF FACTS:

Applicant entered active duty on 13 February 2001.  On 9 January 2002, he received a letter of reprimand (LOR) for illegally driving his motorcycle without a state license, insurance, and a certificate of completion of the required Motorcycle Safety Foundation course.  On 31 May 2002, he received an LOR for having been issued multiple traffic tickets by AF security forces and the state Highway Patrol for driving without a license or insurance, passing on the right shoulder and traveling at speeds in excess of 75 mph, as well as being in an accident from following too closely in traffic.  On 17 June 2002, he was issued an LOR as his former commander had witnessed him driving his motorcycle on base at excessive speeds and leaning too heavily into turns.  At this time an Unfavorable Information File (UIF) was established.  On 19 June 2002, he failed to obey a lawful order by driving his motorcycle after being instructed not to.  Consequently, he received an Article 15 with punishment consisting of reduction in grade to Airman Basic (AB/E-1), suspended until 9 January 2003, unless sooner vacated, forfeiture of $100 per month for two months and 14 days additional duty.

In June 2002, he was observed wearing a tongue ring while in uniform in violation of Article 92 of the Uniform Code of Military Justice (UCMJ) and was verbally warned, counseled, and ordered by his supervisor to not wear the ring while in uniform.  On 23 July 2002, his supervisor observed him wearing the tongue ring in uniform and vacated the suspended reduction in grade for disobeying a lawful order and violating a lawful regulation.  On 9 August 2002, he was pulled over by base security for traveling 80 mph in a 55 mph zone; considered reckless driving.  He received a traffic ticket and an Article 15 with punishment consisting of restriction to base for 30 days.

On 20 October 2002, his commander recommended he be discharged with a general (Under Honorable Conditions) discharge for minor disciplinary infractions at the earliest possible date.  Probation and rehabilitation were considered and not recommended.  The discharge was found legally sufficient on 20 October 2002 and he was discharged effective 29 October 2002 after serving 1 year, 8 months, and 17 days of active military service.  He was discharged with an RE code of 2B, Separated with a general (Under Honorable Conditions) discharge.

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AIR FORCE EVALUATION:

AFLSA/JAJM contends the application is without merit and recommends it be denied.  Orders, which require the performance of military duties, are presumed to be lawful when issued by superiors.  In the applicant’s application he states the order by his commander to not drive his motorcycle for a week had no military connection and interfered with his private rights and/or personal affairs.  The applicant was observed riding his 

motorcycle in a reckless manner on 17 June 2002.  It was for this action the applicant was ordered not to drive for a week, and 
received a LOR.  He doesn’t directly challenge the legality of this limited verbal order.  The LOR however, included a new order revoking his driving privileges for 30 days - arguably an order in conflict with AFI 31-204 - but not the order in issue under these facts.  He implies the 30-day revocation order was the basis for the Article 15 issued in Jul 2002.  He is incorrect.  The Article 15 does not rely on the driving revocation but on the commander’s lawful order that the applicant was not to drive for the period of one week.  In his supporting paperwork arguing against the Article 15, the applicant complains that the choice of Article 92 over Article 90 of the UCMJ was incorrect and therefore invalidated the Article 15.  JAJM defines Article 90 as willful disobedience to a superior commissioned officer’s orders while Article 92 addresses the failure to obey orders or regulations.  JAJM states that while the use of Article 92 in this case may be inartful, it was not illegal or improper.

JAJM contends the applicant should not prevail here absent clear error or injustice.  By electing to resolve the allegation in the nonjudicial forum, he placed the responsibility to decide his case with his commander.  The commander, given that responsibility, had to determine an appropriate punishment upon determining the applicant had committed the offense.  His commander ultimately ruled against the applicant, as did the appellate authority.

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.  Nor has he presented any supporting documentation or argument to justify upgrading the character of his discharge.

JAJM’s complete evaluation is at Exhibit C.

AFPC/DPPAE recommends denial.  After review of the case file, DPPAE states the RE code of 2B is correct.

DPPAE’s complete evaluation 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 30 January 2004 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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 an error or injustice in regard to applicant’s request that his reenlistment eligibility be changed.  Applicant contests the legality of the Article 15 he received as a result of not following a superior’s order.  After a thorough review of the documentation provided in support of his appeal and the evidence of record, it is our opinion that given the circumstances surrounding his separation from the Air Force, the reenlistment eligibility assigned to the applicant was proper and in compliance with the appropriate directives.  

4.  Notwithstanding the aforementioned, we note the legal advisory from JAJM admits that the Article he was charged under was questionable as to its pertinence regarding his offense.  Additionally, applicant’s counsel’s two statements written as responses to the applicant’s Article 15 figured heavily in our deliberations.  The applicant has expressed a desire to enlist in the Marine Corps and we believe he should be given the opportunity to apply for enlistment.  Whether or not he is successful will depend on the needs of the service and our recommendation in no way guarantees that he will be allowed to return to any branch of the service.  Therefore, we recommend the applicant's records be corrected to the extent indicated below.

5.  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 issue(s) involved.  Therefore, the request for a hearing is not favorably considered.
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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 at the time of his discharge from active duty on 29 October 2002, he was issued a reenlistment eligibility (RE) code of 3K.

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The following members of the Board considered this application in Executive Session on 30 March 2004, under the provisions of AFI 36‑2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Sep 03, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 17 Nov 03.
    Exhibit D.  Letter, AFPC/DPPAE, dated 16 Jan 04.
    Exhibit E.  Letter, SAF/MRBR, dated 30 Jan 04.