RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-00412
INDEX CODE:  110.02
	XXXXXXXXXXXXXXXX				COUNSEL:  NONE

	XXXXXXXXXX					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

He be reinstated to active duty with full back pay and no lost time or, alternatively, he be granted a 15-year retirement with full benefits, or an upgrade of his general discharge to honorable.  In addition, he be compensated for lost time, wages, and benefits for seven days of incarceration from 27 November 2002 through 3 December 2002.

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APPLICANT CONTENDS THAT:

He was denied due process of law during the 27 May 2003 Board of Inquiry (BOI) that resulted in his separation from the Air Force.  His commander violated the Posse Comitatus Act, 18 United States Code (USC), Section 1385, by directing one of his subordinates to write a statement about his misconduct and then releasing the statement to civilian authorities.  In addition, the BOI members were not allowed sufficient time to adequately review the documentary evidence before the board and he was denied the opportunity to present live testimony of a key witness, who was his civilian counsel in State criminal court proceedings, to the board.  He was a victim of a prank, which caused him to be incarcerated for seven days (27 November - 3 December 2002).  His accusers failed to show in court or pursue any charges, which resulted in all charges being dismissed.  

In support of his application, the applicant provides a personal statement; copies of civilian incident reports, warrants of arrest, and petition for protective order; court transcripts; duty status changes; DFAS computation of time lost; USC Code Title 18, Section 1385 (Posse Comitatus Act); sworn affidavits and testimonies; response to the BOI; discharge documentation; and AFI 51-201 excerpt.  The applicant’s complete submission, with attachments, is at Exhibit A (two separate applications).

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STATEMENT OF FACTS:

The applicant is a former rated officer who was appointed a second lieutenant, Reserve of the Air Force, on 14 May 1988 and was voluntarily ordered to extended active duty on 11 November 1988.  He was integrated into the Regular Air Force on 1 March 1995 and was progressively promoted to the grade of major (0-4) effective and with a date of rank of 1 December 1999.  

The following is a resume of his OPR ratings commencing with the report closing 1 January 1991:

	PERIOD ENDING				OVERALL EVALUATION

	 1 Jan 91 (1Lt)				Meets Standards (MS)
	12 Jul 91						  MS
	 3 Apr 92						  MS
	 3 Mar 93 (Capt)				  MS
	 3 Mar 94						  MS
	 3 Mar 95						  MS
	 1 May 96						  MS
	14 Feb 97						  MS
	14 Feb 98						  MS
	14 Feb 99						  MS
	14 Feb 00 (Maj)				  MS
	14 Feb 01						  MS
	14 Feb 02						  MS
	14 Feb 03						  Does Not Meet Standards
								  (Referral OPR)

On 27 November 2002, civilian authorities arrested the applicant with warrants accusing him of vandalism, stalking and obstruction of justice.  He was released from civilian confinement after his bond hearing on 3 December 2002.  On 30 January 2003, charges against the applicant were dismissed in court after his accusers failed to appear.  On 18 March 2003, his commander initiated discharge action against the applicant based on allegations of an unprofessional relationship, maltreatment, three violations of no-contact orders, damage to personal property, and communicating a threat.  On 25 March 2003, his wing commander notified the applicant that he was initiating action against him that required the applicant to show cause for retention on active duty under AFI 36-3206, chapter 3, paragraph 3.6.4 (serious or recurring misconduct punishable by military or civilian authorities).  On 4 April 2003, the applicant acknowledged receipt after consulting military counsel.  On 6 May 2003, his counsel submitted a statement in response in the applicant’s behalf.  On 5 May 2003, his wing commander notified the applicant that a BOI would be convened to receive evidence and make findings and recommendations whether the applicant should be retained in the Air Force.  On 27 May 2003, the BOI was convened.  After considering the evidence, the BOI found the applicant did not commit one of the no-contact order violations nor had he been involved in an unprofessional relationship.  However, the BOI found he had committed the other offenses and recommended the applicant receive a general discharge from the Air Force.  On 7 July 2003, the applicant’s counsel responded to the discharge approval authority claiming the BOI was legally insufficient, that its findings and recommendations should be invalidated, and the discharge action be terminated.  On 8 July 2003, his wing commander concurred with the BOI’s recommendation that the applicant be separated from the Air Force with a general discharge, under AFI 36-3206, Chapter 3, paragraph 3.6.4, which authorizes discharge for serious or recurring misconduct punishable by military or civilian authorities.  

On 12 August 2003, the Chief, Administrative Law Division, found the BOI’s findings and recommendations legally sufficient.  On 30 September 2003, the Secretary of the Air Force approved the applicant’s separation with a general (under honorable conditions discharge) and determined that the applicant should be required to reimburse the United States for the pro rata share of the Aviator Bonus he received pursuant to Title 37, United States Code, Section 301b.  On 14 October 2003, the applicant was involuntarily discharged with a general (under honorable conditions) discharge and a separation code of GKQ (misconduct).  He served 14 years, 11 months and 4 days on active duty.  He had seven days time lost due to civilian confinement.

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AIR FORCE EVALUATION:

AFPC/JA recommends the applicant’s requests be denied.  JA states that the applicant’s counsel raised the same contentions in their 7 July 2003 Response to the Board of Inquiry.  AF/JAA addressed each of these issues in its 12 August 2003 legal review of the BOI, rejecting each allegation and concluding that the record was legally sufficient to support the board’s recommendation.  It is JA’s opinion that the applicant was provided a full and fair hearing by an impartial board, consistent with the provisions of Air Force Instruction 51-602.  

Concerning the issue of the applicant’s lost time due to incarceration, JA states that according to court transcripts, civilian authorities dismissed charges relating to these arrests (charges of stalking and destroying property) in a preliminary hearing conducted on 30 January 2003.  DoDFMR, Vol 7A, IC 23-03, Table 1-13, Rule 2 provides that when a member is absent from duty in confinement by civil authorities and charges are dismissed and it is clear that arrest and detention were not due to member’s misconduct, then his/her absence may be excused as unavoidable.  In such cases, the member is entitled to otherwise proper credits of pay and allowances.  AFI 36-2911, para 4.7.5.2.2 provides that “Examples of excused absence not charged to leave include…when civilian law enforcement authorities hold, try and acquit a member.”  JA states that the applicant was not tried and acquitted by civilian authorities; rather the charges against him were dismissed in a preliminary hearing.  The applicant’s confinement cannot be excused as unavoidable unless it is clear that his arrest and detention were not due to his misconduct.  It is JA’s opinion that the applicant has failed to clearly establish that his arrest and detention were not due to his own misconduct.  Additionally, the applicant has failed to present relevant evidence of any error or injustice warranting relief.  The JA evaluation is at Exhibit C. 

AFPC/DPPRRP recommends the applicant’s request for a 15-year retirement be denied.  DPPRRP states that the applicant did not have the required amount of active duty required for a 15-year retirement under the Temporary Early Retirement Act (TERA).  In addition, the TERA program was not open for application at the time of his separation from active duty.  The DPPRRP evaluation, with attachments, is at Exhibit D.

AFPC/DPPRS recommends denial.  DPPRS states the applicant’s discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  The DPPRS evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 2 April 2004 for review and response within 30 days.  As of this date, this office has received no response.

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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 probable error or injustice.  The applicant did not provide persuasive evidence showing he was denied due process during the BOI that resulted in his separation from the Air Force.  He also failed to provide evidence that would lead us to believe that information in the discharge case was erroneous, his substantial rights were violated, or his commanders abused their discretionary authority.  In the absence of such evidence, it is our opinion that the characterization of discharge which was issued at the time of the applicant’s separation accurately reflects the circumstances of his separation and we do not find the characterization of discharge to be in error or unjust.  As far as the applicant’s request for a 15-year retirement, we note the applicant did not have enough time to qualify for a 15-year retirement under TERA and, more importantly, that the program ended six years prior to his separation from active duty.  Therefore, we find no basis in which to favorably consider his request for a 15-year retirement.  In reference to his request to restore his lost time, the applicant has failed to provide evidence that his lost time was not due to his own misconduct.  In the absence of such evidence, we are not inclined to grant his request for restoration of his lost time.  In summation, we conclude that no basis exists upon which to recommend favorable action on his requests to upgrade his characterization of discharge, grant him a 15-year retirement, or restore his lost time.

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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 this application in Executive Session on 8 June 2004, under the provisions of AFI 36-2603:
The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2004-00412:

	Exhibit A.  DD Forms 149, dated 2 Feb & 5 Mar 04, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/JA, dated 31 Mar 04. 
	Exhibit D.  Letter, AFPC/DPPRRP, dated 9 Mar 04. 
	Exhibit E.  Letter, AFPC/DPPRS, dated 24 Feb 04. 
	Exhibit F.  Letter, SAF/MRBR, dated 2 Apr 04.

									
									Panel Chair