RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00211

		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) be set aside, his general (under honorable conditions) discharge be upgraded to honorable, and his “2B” reenlistment eligibility (RE) code be changed so that he may reenlist.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 21 December 1992, he received an Article 15 for failure to show.  At that time, he had a bona fide medical condition in which he was taking painkillers.  These medications were causing him to over sleep, which altered his perception by not allowing him to comprehend exactly how his injury and medications were affecting his duty performance.  A change in medications would have been helpful.  At the time, he was not sleeping well due to family matters, and chronic knee pain; however, fatigue and the medications were the main cause of oversleeping.  If he had been given the opportunity to seek a different medical remedy for medications, he would not have been taking the Indocin.  Indocin causes drowsiness.  The Article 15 led to an AFR 39-10 Administrative Discharge.  His discharge was based on minor disciplinary infractions.  Most of the charges were documented as not his fault.  One of the charges was involving escort responsibilities.  He had a letter from the MSgt who had relieved him of responsibility when he met with his area defense lawyer.  He was told to write something up and she would look at it.  He was never told that he needed sworn statements to counter the charges he was facing and his defense lawyer offered no assistance or advise.  He was given the belief that there was nothing he could do to fight the AFR 39-10 discharge.  He was told very little about what he could do to fight the discharge.  If any of the letters he submitted in the AFR 39-10 had been taken into account, he would not have been considered a screw-up and a lost cause. His career would have been salvageable.  He received a good conduct medal right before his discharge.  He feels this does not show his entire service was bad.  He feels that if he had been aware and given better counsel, he could have made corrections to his performance and took responsibility for his actions.  He is not responsible for the actions of the people around him.  The documentation in the Art 15 and AFR 39-10 discharge made him responsible for things outside his control.  He is trying to join the Texas Air National Guard and unless he changes his discharge to honorable and changes his RE code, he is not eligible.  As he stated in his DD Form 298, he has been employed in law enforcement with no charges of misconduct.  All he asks is a fair chance to correct his military record.  He is currently employed as a force protection specialist in Bosnia.

In support of his request, he submits a personal letter.
 
Applicant’s complete application, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic on 16 November 1989.  The applicant was involuntarily discharged under the provision of AFR 39-10 (misconduct - pattern of minor disciplinary infractions) with service characterized as general (under honorable conditions) with an RE code of 2B on    4 February 1993 in the grade of airman first class.  He served 3 years, 2 months and 29 days of total active military service.

On 11 January 1993, the applicant was notified by his commander that he was recommending applicant for a discharge for misconduct-minor disciplinary infractions.  Reason for the action:  On 2 March 1992, received Letter of Counseling for failure to go to a scheduled appointment; 20 March 1992, received Letter of Counseling for failure to report for duty at the time prescribed; 30 April 1992, counseled for dereliction in the performance of his duties in that he failed to remain with the people he was escorting in a controlled area; 25 May 1992, received Letter of Counseling for failure to report to his duty section at the time prescribed; 19 March 1992, received Letter of Reprimand (LOR) for failure to report to his duty section at the time prescribed; 3 June 1992, received LOR and placed on the Control Roster for being intoxicated and disorderly in that he communicated a threat to his spouse; 24 September 1992, memorandum for record prepared for failure to report to his duty section at the time prescribed; On 15 December 1992, applicant’s commander notified the applicant he was considering whether the applicant should be punished under Article 15, UCMJ, for failure to report to his duty section at the time prescribed.  After consulting with military defense counsel, applicant waived his right to demand trail by court-martial and accepted nonjudical punishment.  On 21 December 1992, applicant’s commander found he had committed the offense alleged and imposed punishment consisting of a reduction in rank to airman first class.

The base legal office reviewed the case and found it legally sufficient to support discharge and recommended a general (under honorable conductions) discharge without probation and rehabilitation.  

On 28 November 1995, the Air Force Discharge Review Board (AFDRB) reviewed all the evidence of record and concluded no change in the applicant’s discharge was warranted.  

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.  They state the applicant should not prevail here absent clear error or injustice.  Prior to receiving the Article 15, the applicant had received one memo for the record, three Letters of Counseling, and one Letter of Report, all for failure to go. The commander clearly acted well within his authority in reducing the applicant.  There is no reason or basis for the Board to substitute its judgment in this case. 

The basis of the applicant’s request for relief is insufficient to warrant setting aside the Article 15 actions, 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.

AFLSA/JAJM complete evaluation is at Exhibit C.

AFPC/DPPRS recommended denial and stated that based upon the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The discharge was within the discretion of the discharge authority. Applicant did not submit new evidence or identify any errors or injustices that occurred in the discharge processing.  He provided no facts warranting an upgrade of his character of service or reenlistment eligibility code.

AFPC/DPPRS complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant on 28 May 2004, for review and comment within 30 days.  As of this date, no response has been received by this office.

_________________________________________________________________

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 that failure to timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that his Article 15 should be set aside.  Applicant’s contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The evidence reflects that the commander initiated Article 15 action based on information he determined to be reliable and that the nonjudicial action was properly accomplished and applicant was afforded all rights granted by statute and regulation.  We have not been convinced, by his submission, that his commander abused his discretionary authority when he imposed the nonjudicial punishment, and since we find no abuse of that authority, we find no reason to overturn the commander’s decision.  Based on the circumstances surrounding his separation from the Air Force, we find no error or injustice in regard to the RE code issued. Therefore, in absence of evidence to the contrary, we find no basis to recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of a 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-2004-00211 in Executive Session on 27 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 4 Feb 04, w/atch.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, 22 Apr 04.
	Exhibit D.	Letter, AFPC/DPPRS, 19 May 04.
	Exhibit E.	Letter, SAF/MRBR, dated 28 May 04.

	Panel Chair