RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00305
		INDEX CODE:  110.02

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His discharge be upgraded from general, under honorable conditions (UHC) to honorable and his reenlistment eligibility be changed to “Eligible.”

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APPLICANT CONTENDS THAT:

His discharge was in violation of the military regulations that govern such actions and that his state and federal constitutional rights were not properly afforded him.  He admits to errors in judgment but he has always honorably served his country.  His commander was notified in August 2001 that the applicant had been charged with alleged indecent exposure.  Civil authorities were addressing the issue and he claimed he was not guilty of misconduct or indecent exposure.  His commander waited until 27 November 2001 to inform him of his intent to involuntarily discharge him.  Because of limited finances, he had to choose between continuing the civilian trial and get kicked out of the Air National Guard (ANG) without being given the chance to defend himself or try to get the civilian case dismissed and fight the ANG separation.  He decided to try and get the charges against him dismissed in civil court and to hire a lawyer with military experience to try and fight his discharge.

After being threatened by a Staff Judge Advocate that he would receive an under other than honorable conditions (UOTHC) discharge unless he signed away his right to a hearing, he decided to waive his right to a hearing and accept an under honorable conditions (UHC) discharge as he didn’t feel he could trust his leadership.

In support of his appeal, the applicant has provided a personal statement and copies of several pertinent documents relating to his civil case, his separation/discharge documentation, several letters of recommendation, a report of investigation (ROI) from the Air Force Office of Special Investigation (AFOSI), pertinent case studies, personnel documents including several enlisted performance reports (EPR’s), college transcripts and his application to the Discharge Review Board (DRB).

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

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STATEMENT OF FACTS:

The applicant, a former member of the Florida Air National Guard (FLANG), joined the FLANG on 1 October 1993 and was progressively promoted to the grade of Technical Sergeant (TSgt) with a date of rank (DOR) of 1 April 1999.  On 24 February 1999 he was selected for an Active Guard/Reserve (AGR) position.  From 6 August to 24 August 2001, the AFOSI, at the request of applicant’s commander, conducted an investigation of the applicant on allegations he violated Article 134, Subsection 88 of the Uniform Code of Military Justice (UCMJ), misconduct due to indecent exposure.  On 9 August 2001, he was interviewed by the AFOSI as a matter of course and exercised his right to remain silent and not answer questions.  On 23 August 2001, a victim of applicant’s alleged misconduct filed civil charges against the applicant and the state brought the same charge on 30 October 2001.  On 27 November 2001, his commander notified him he was recommending his AGR tour be curtailed and that he be involuntarily discharged from the FLANG for misconduct, with a service characterization of general, under other than honorable conditions (UOTHC).  On 30 November 2001, he acknowledged receipt of his commander’s recommendation and asked that his AGR tour not be curtailed until after his administrative separation board hearing.  On 14 February 2002, the Florida Adjutant General (AG) approved the involuntary separation action.  On 3 March 2002, on advice from military counsel, he voluntarily waived his right to an administrative discharge board contingent on his receipt of no less than a general, under honorable conditions (UHC) discharge.  On 7 March 2002, his AGR order was curtailed from 6 February 1999 to 5 February 2003 by amendment to 6 February 1999 to 24 April 2002.  Also on 7 March 2002, the civil charges of indecent exposure brought by the state were judged nolle pros (We shall no longer prosecute) on the condition the applicant undergo a sexual offender course.  On 24 April 2002, his AGR tour expired and he was discharged from the FLANG with an UHC discharge.  He was discharged in the grade of TSgt after having served 16 years, 6 months, and 23 days of combined Regular and Reserve service.  

On 3 September 2003, he initiated an Inspector General (IG) investigation wherein he claimed he was separated from the AGR program and discharged from the FLANG due to reprisal and violations of due process.  The IG complaint analysis discovered a local command directed investigation (CDI) had taken place between March and June 2004.  The CDI identified 13 specific allegations in three main categories: improper maintenance procedures by members of his unit, abuse of authority by his commander, and violations of due process surrounding his separation from the AGR program and discharge from the FLANG.  The CDI found two of the allegations were partially substantiated and the remaining eleven allegations were not substantiated.  The applicant alleged he was separated and discharged because he raised serious maintenance concerns in a unit-wide meeting.  The IG found the preponderance of the evidence showed his commander made a clear, concise and appropriate decision to recommend separation and discharge of the applicant due to misconduct.  The commander’s recommendation was founded on serious deviation from the expected code of conduct for military personnel in particular that of a noncommissioned officer.  The seriousness of the derogatory act that led up to his commander’s recommendation made the recommendation appropriate.  The evidence shows the applicant’s allegation of reprisal with respect to his addressing maintenance practices at his unit are not substantiated.  The IG recommended no further investigation into allegations of reprisal.  On 27 October 2004, letter of the IG’s findings notified the applicant.

Examiner’s Note: The applicant had applied to the Discharge Review Board (DRB) about a month prior to applying to the AFBCMR.  On 11 January 2005, we sent him a letter notifying him that, as he had not exhausted all remedies available to him to find relief prior to applying to the AFBCMR, we were administratively holding his case until such time as the DRB made a decision on his request.  The DRB denied his case on 8 June 2005.  As the AFBCMR did not hear from the applicant again, his case was administratively closed on 8 May 2006.  His case was reopened on 19 July 2006 pending receipt of a letter from the applicant requesting the AFBCMR consider his application.  His letter was received on 7 September 2006.

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AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  The process by which the applicant was separated and discharged was clearly in accordance with Air Force Instruction 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members.  Characterizations of service that apply to specific discharge scenarios state that a characterization of “Honorable” is justified if “… (The) quality of the member’s service generally has met USAF standards or acceptable conduct and performance of duty.”  “Under Honorable Conditions (General)” is appropriate when “Significant aspects of conduct or performance of duty outweigh positive aspects of the member’s military record.”  After significant review of this case and in light of AFI 36-3209, DPPI states the applicant received the appropriate characterization of service under the circumstances leading to his discharge.  DPPI can find no evidence of error or injustice in this case and therefore can find no basis upon which to favorably consider his application.

DPPI’s complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant questions DPPI’s contention they “thoroughly reviewed” the evidence he presented.  He states he was not found guilty of any crime and the charges in the civil case were dropped.  The applicant also provides numerous challenges to statements made by the FLANG Assistant Adjutant General for Air in response to a query from his state senator.  

Applicant asks should the AFBCMR find the DRB has closed his case, that we should reopen his case.  He provides numerous attachments to his letter that were originally intended as an appeal to the DRB.  He wants the Board to know he has graduated from college with nominations and acceptance into Honors Societies and Magna Cum Laude as a Double Major in Inter Disciplinary Social Sciences and Psychology from Florida State University.  Though he does not agree with the practice of taking into account post service accomplishments when considering requests for upgrades to discharge, he notes he does not make the rules and has included his post service accomplishments.  He plans to continue his education by attending law school where he plans to ensure the mis-treatment that occurred during his discharge does not happen to others.

Applicant’s complete response, with attachments, is at 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.  We took notice of the applicant's complete submission in judging the merits of the case including his contention his discharge was in violation of his military rights and that his State and constitutional rights were violated; however, we agree with the opinion and recommendation of the Air National Guard office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  After being notified he was being considered for involuntary discharge with an UOTHC service characterization, he voluntarily decided to waive an Administrative Discharge Board (ADB) to ensure his service characterization would instead be General, Under Honorable Conditions (UHC).  His claim he was actually forced out of the ANG and his fulltime active duty tour because he spoke up about deficiencies in maintenance and flying operations at his unit were not substantiated.  Additionally, his claims of reprisal and violations of due process were also found to be without merit by an Inspector General Investigation.  The IG found a preponderance of the evidence provided including an earlier Commander Directed Investigation (CDI) indicate the commander made a clear, concise, and appropriate decision to recommend separation and discharge of the applicant due to misconduct.  Further, we noted that while his civil case was processed as Nolle Pros, meaning “We shall no longer prosecute” the Nolle Pros agreement was contingent upon the applicant attending a sexual offender course.  Therefore, in the absence of evidence to the contrary, we find no compelling 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 issue(s) 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-2004-00305 in Executive Session on 25 October 2006, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Feb 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 7 Oct 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 15 Oct 04.
    Exhibit E.  Letter, APPLICANT, dated 19 Oct 04.
    Exhibit F.  Letter, APPLICANT, dated 30 Aug 06 w/atchs.

                                   Panel Chair