RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-03747
		INDEX CODE:  106.00, 110.02
	  	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The disobeying a direct order charge charge be dismissed and his reenlistment (RE) code be changed to allow enlistment in the Reserves.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He got a haircut as ordered by his commander and reported as directed, but his commander was out of his office.  He left a message with the commander’s secretary, however she never gave the commander the message.  He worked the night shift and was scheduled for parades and day duties just to harass him.  Due to lack of sleep, he overslept once and was late for work.

In support of his request, applicant provided a personal statement.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered into the Air Force on 16 August 1974 and was progressively promoted to the grade of airman first class.  On 16 November 1976, he was notified by his commander that he was recommending that he be discharged from the Air Force.  The basis for this action was that on 14 August 1976 and 4 Sep 1976, he failed to go at the time prescribed to his appointed place of duty and he received two letters of reprimand.  On 15 September 1976, he was served with nonjudicial punishment under Article 15, for failure to go to his appointed place of duty on 4 September 1976.  The applicant was informed of his rights concerning the Article 15 and he elected not to submit matters in his own behalf.  He did not make an oral presentation in his defense, did not demand trial by court-martial and he did not appeal the punishment of extra duty for 14 days as imposed by the Squadron Section Commander.  The applicant was separated on 24 November 1976, under the provisions of AFR 39-10, Chapter 3, Section B, (Marginal or Nonproductive Performer While Assigned to an Organizational Unit) and received an honorable discharge.  He served two years and three months and nine days on active duty.

Pursuant to the Board's request, the Federal Bureau of Investigation, Clarksburg, WV, indicated on 28 April 2004, that on the basis of the data furnished they were unable to locate an arrest record.  (See Exhibit G)

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  The applicant accepted nonjudicial punishment proceedings, effectively waiving his right to demand a trial by court-martial.  By electing to resolve the allegation in the nonjudicial forum, the applicant agreed to let his commander decide whether he had committed the offense, instead of a court-martial panel.  The commander ultimately resolved the issue of whether or not he had committed this offense against the applicant.  There was sufficient evidence for the commander to determine that the applicant had willfully failed to go to his appointed place of duty on 4 September 1976.  The punishment the commander chose to impose was lawful and he deemed it warranted under all the circumstances.  The applicant did not appeal that punishment.  The applicant has provided no evidence of a clear error or injustice related to his Article 15 action.  He provided no information for consideration by his commander.  The evidence supports his commander’s determination that the applicant failed to go.  The imposition of 14 days of extra duty was a permissible punishment and was warranted in light of the applicant’s disciplinary record.

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPRS recommends denial.  Based on the documentation on file, the discharge was consistent with the procedural and substantive requirements of the discharge regulation and the discharge was within the discretion of the discharge authority.  The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge proceedings.  Applicant provided no facts warranting a change in his reenlistment code.

The DPPRS evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that the whole incident occurred over a miscommunication with the commander’s secretary and being late for work twice in two years.  If the matter was so important to the commander, then why did he not meet him in person rather than have a civil servant do his job for him.  The advisory opinion only reflects information researched in old files when questions should be directed to the commander involved.  His whole military career was brought to a halt due to minor offenses with very little evidence to support their case in a real court of law.  

His complete response is at Exhibit F.

_________________________________________________________________

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 an error or injustice to warrant dismissing the “disobeying a direct order” charge or changing his RE code.  After careful consideration of the available evidence, we found no indication that the actions taken to affect his discharge were improper or contrary to the provisions of the governing regulations in effect at the time, or that the actions taken against the applicant were based on factors other than his own misconduct.  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.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered Docket Number BC-2003-03747 in Executive Session on 25 May 2004, under the provisions of AFI 36-2603:

			

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 5 Nov 03.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 8 Dec 03.
	Exhibit D. Letter, AFPC/DPPRS, dated 27 Jan 04.
	Exhibit E.	Letter, SAF/MRBR, dated 6 Feb 04.
	Exhibit F. Letter, Applicant’s response, dated 16 Feb 04.
	Exhibit G. FBI Response, dated 28 Apr 04.