RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00929
		INDEX NUMBER:  110.03
	XXXXXXX	COUNSEL:  

	XXXXXXX	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His discharge from the Air Force for misconduct be voided and he be reinstated to active duty.

In the alternative, applicant requests that the characterization of his discharge be changed from under honorable conditions (general) to honorable.

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APPLICANT CONTENDS THAT:

Applicant’s counsel lays out applicant’s appeal in an eight-page brief of counsel with 14 attachments.  He opines that applicant’s misconduct did not justify his discharge and the life-long stigma he now suffers.

Counsel references a provision in AFI 36-3208 that requires that individuals be given an opportunity to overcome their deficiencies before being discharged for a pattern of misconduct.  According to counsel, implicit in this provision is that an individual should not be discharged for minor misconduct that is no longer a problem.  He states that the applicant had overcome his deficiencies by the time discharge proceedings were initiated in February 2001.

Applicant’s Area Defense Counsel (ADC) represented hundreds of clients in various military disciplinary proceedings at the base where the applicant was assigned and was afforded the unique perspective to say that the applicant’s commander was an extremely strict commander who often gave her troops paperwork for minor infractions.  As compared to other commanders on base, she had a zero tolerance policy for any mistakes or misconduct, no matter how small.  The ADC did not remember another commander during her tenure at the base that consistently recommended that airmen be discharged for such minor infractions.

Counsel provides discussion on how minor the offenses committed by applicant were.  He opines that the commander’s decision that the applicant was not Air Force material was a mistake and that after all the time, effort, and expense that had been expended in the applicant’s training, it was erroneous and unjust to make a mountain out of several little molehills that were either isolated (speeding), nonrecurring (oversleeping), or of questionable validity (untidiness).

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

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 14 Jul 99.  On 16 Feb 01, his squadron commander notified him that he was recommending his discharge from the Air Force based on a pattern of misconduct (conduct prejudicial to good order and discipline).  The reasons for the commander’s actions were:

	  a. Failing to keep his room in inspection order from 15 Dec 00 to 21 Dec 00.  Applicant received his second Article 15 for this offense.

	  b. Late for work on 12 Oct 00.  His suspended reduction to airman from an earlier Article 15 was vacated.

	  c. Late for work on 10 Jul 00 and 7 Aug 00.  Applicant received an Article 15 consisting of a suspended reduction to airman, 15 days extra duty, and 15 days restriction to Base.

	  d. Reporting to duty on 10 Jul 00 without having shaved or shined his boots.

	  e. Late for work on 23 Jun 00.  Applicant received a letter of reprimand (LOR).

	  f. Ticketed for speeding on 15 Apr 00.  Applicant received a letter of counseling.

	  g. Failure to go on 4 Apr 00.  Applicant received an LOR.

	  h. Failure to go on 20 Mar 00.  Applicant received a written counseling.

	  i. Failure to go on 15 Mar 00.  Applicant was verbally counseled.

The applicant acknowledged receipt of the discharge notification on 16 Feb 01.  On 22 Feb 01, he responded that he had consulted counsel and he submitted a written response in his behalf.  On   1 Mar 01, the applicant’s squadron commander recommended to the Wing Commander that the applicant be discharged for the reasons indicated above, be given a general (under honorable conditions) discharge, and be offered a period of probation and rehabilitation (P&R).  On 7 Mar 01, the Wing Commander directed that the applicant be separated from the Air Force based on a Pattern of Misconduct (Conduct Prejudicial to Good Order and Discipline).  The Wing Commander also directed that the applicant be separated with a General (Under Honorable Conditions) discharge, without probation and rehabilitation.  The applicant was discharged on 12 Mar 01 with a General (Under Honorable Conditions) discharge.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial of the applicant’s appeal.  Applicant has indicated technical irregularity in his case based on AFI 36-3208, paragraph 5.2, which states “Airmen should have an opportunity to overcome their deficiencies before discharge action starts...”  Based on the actions taken against the applicant from Mar 00 to Dec 00, he was provided the opportunity to overcome his deficiencies.  Based on the documentation in the applicant’s master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air Force evaluation.  Counsel states that the evaluation only addresses one of the many issues in the case and does so superficially.  Counsel opines that AFPC/DPPR’s assertion that the “applicant was provided an opportunity to overcome his deficiencies” does not fully address the requirement in AFI 36-3208 that discharge proceedings not be initiated until an airman is given the opportunity to overcome his deficiencies.  According to counsel, implicit in this requirement is the notion that airmen are only to be discharged for deficiencies that they fail to overcome.  Counsel references their original Brief of Counsel, which stated that the applicant had overcome all of his deficiencies by the time discharge proceedings were initiated in Feb 01.  Counsel states that the applicant’s discharge was manifestly inconsistent with the procedural and substantive requirements of AFI 36-3208.

Counsel’s complete response 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; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  Applicant’s counsel appears to argue that applicant had overcome his deficiencies based on his not being cited for repeat infractions of the same type.  However, the applicant was discharged based on a pattern of misconduct, which meant that his misconduct was looked at in totality and not as individual offenses.  While the applicant may not have committed the same type of offense each time, we believe he was placed on notice that continued misconduct of any type would lead to progressively harsher action, which in his case was his eventual discharge.  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 issues 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 Docket Number BC-2004-00929 in Executive Session on 24 June 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPRS, dated 26 Mar 04.
    Exhibit D.  Letter, SAF/MRBR, dated 2 Apr 04.
    Exhibit E.  Letter, Counsel, dated 30 Apr 04.