RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-03866
							INDEX CODE:  110.00
XXXXXXXXXXXXXXXXXX				COUNSEL:  NONE
XXX-XX-XXXX				HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  20 JUNE 2006

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APPLICANT REQUESTS THAT:

1.  His general (under honorable conditions) discharge be upgraded to honorable.  

2.  The punishment imposed upon him under Article 15, Uniform Code of Military Justice (UCMJ), be set aside.

3.  His rank of staff sergeant (E-5) be restored.

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APPLICANT CONTENDS THAT:

He was discharged and reduced in rank based on an outstanding bill from American Express which barred him from reenlistment.  He paid the debt in full and there was never any intent to deceive anyone or the government.  He should have been notified of the punitive UCMJ action being levied upon him.  His address and phone number was kept by his unit; however, he was never notified of these actions.  He had an excellent service record and was being considered for a TDY tour.  He is a good and honest person who has served his country well in peacetime and war.  

In support of his appeal, the applicant provides a personal statement and an excerpt from Army Regulation 27-10, Chapter 4, Nonjudicial Punishment.  Applicant’s submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Prior to the period of service under review, the applicant served as an enlisted member of the Regular Army from 28 April 1983 until 17 April 1991, when he was discharged in the grade of sergeant (E-5) for expiration term of service.  He was credited with 7 years, 11 months and 8 days of active duty service.

On 28 June 1991, applicant enlisted in the Air Force Reserve for a period of 6 years in the grade of E-5.  His last reenlistment occurred on 2 March 1997, in the grade of E-5, for a period of 6 years.  He was reduced to the grade of senior airman (E-4), pursuant an Article 15.

Examiner’s Note:  The Article 15 punishment is not a matter of record.  The commander’s letter recommending separation reflects a reference to a record of disciplinary action “Demotion letter dated 5 December 1997 and a demotion under “5 March 1998 Order A 162.”

On 6 September 1997, the applicant’s squadron commander notified the applicant that he was being denied future participation for pay and points pending his involuntary discharge from the Air Force Reserve.  On 10 January 1998, the applicant’s commander initiated discharge proceedings against him under the provisions of AFI 36-3209, paragraph 3.21.3.4, for a pattern of misconduct.  The reasons for the commander’s action were:  The applicant had demonstrated financial irresponsibility and violated Air Force Directives regarding his use of the government-issued American Express Card by using the card to take his family on a trip to Disney World and accruing an overdue account of over $5,000.00; he used the card for unauthorized purchases such as car parts and cell phone calls; he wrote a check to Kelly AFB, TX Bowling Center for $20.00 on an account with insufficient funds; he failed to pay on a DPP account with a total owed of $1,788.44; he wrote a check at FE Warren AFB, WY for $306.95 on a closed account; and, he wrote a check to the AAFES for $300.00 on an account with insufficient funds.  The commander stated that the applicant admitted to the misuse of the American Express Card and attempted to resign from the Air Force Reserve.  The commander further stated that, before initiating this recommendation, he requested the immediate supervisor contact the applicant and no contact was made.

In a legal review of the commander’s recommendation, dated 7 March 1998, the wing Deputy Group Staff Judge Advocate, noted that, on 2 August 1997, the applicant submitted a letter to his supervisor in which he apologized for his misconduct and indicated it was “unintentional.”  This officer recommended the case be forwarded to the Air Force Reserve Center (AFRC) commander with a recommendation that the applicant be discharged with an under other than honorable conditions (UOTHC) discharge.  On 16 March 1998, the wing commander forwarded the case file to AFRC with a recommendation that the applicant be discharged because of misconduct with an UOTHC discharge.  Also provided was the applicant’s last known home address.  On 6 April 1998, following a review of the case file, AFRC/JA recommended the applicant be discharged for the stated reason with a general (under honorable conditions) discharge.

By memorandum dated 17 April 1998, the applicant was notified of the recommendation for his separation and that an under honorable conditions discharge was being recommended.  The applicant was advised of his rights.  Information in the record reveals that this package, mailed certified, was returned to AFRC by postal authorities as “address unknown.”  The memorandum of notification was remailed to him by first class mail on 7 May 1998.  The applicant was advised his failure to reply to the notification by 28 May 1998 would constitute a waiver of his rights.  Records indicate postal authorities subsequently advised AFRC the applicant was “attempted not known.”  In a legal review of the discharge case file, dated 26 June 1998, the AFRC Chief of Civil Law found it legally sufficient and recommended that he be discharged from the Air Force Reserve with a general (under honorable conditions) discharge.  On 13 July 1998, the discharge authority directed that he be discharged with a general under honorable conditions discharge by reason of Misconduct, Commission of a Serious Offense, Other Serious Offense.  Effective 6 August 1998, the applicant was discharged under the provisions of AFI 36-3209, paragraph 3.21.3.4, Misconduct, Commission of a Serious Offense, Other Serious Offense and received a general (under honorable conditions) discharge.  He was credited with 13 years, 11 months, and 8 days of satisfactory Federal service. 

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AIR FORCE EVALUATION:

AFRC/DPMB recommends the application be denied.  DPMB states there is no evidence to support the applicant’s claim he was not notified of the demotion.  The applicant was given due process and to revoke the administrative demotion now would be a disservice to the commander and the Air Force.  The AFRC/DPMB evaluation is at Exhibit C.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 4 March 2005, a copy of the Air Force evaluation was sent to the applicant for review and response.  As of this date, this office has not received a 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 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 error or injustice.  The applicant asserts the Article 15 punishment imposed on him should be be set aside and his rank of staff sergeant (E-5) be restored; and, his general (under honorable conditions) discharge be upgraded to honorable because he was never notified of the actions being taken against him.  We note documentation pertaining to the imposition of nonjudicial punishment is not a matter of record.  In cases of this nature, regularity is presumed in the conduct of military officials in the performance of their duties.  The burden for providing evidence showing the contrary rests with an applicant.  Other than his own unsupported allegations, the applicant has provided no evidence his commander’s decision to impose the punishment was contrary to the provisions of the UCMJ or an abuse of discretionary authority.  As to the separation action, it appears the applicant’s unit made several attempts to contact him upon the initiation of discharge proceedings, to no avail.  Interestingly, there is no indication in the record nor has the applicant provided any evidence showing he made any effort to contact his commander or unit authorities during this period of time.  In our opinion, the infractions cited by his commander as the bases for the applicant’s separation represent serious financial malfeasance.  The applicant claims he repaid the bill in a timely manner but has provided no evidence showing this was the case.  Furthermore, the incident cited by the applicant involving his trip to an amusement park is only one of several charges of financial irresponsibility cited by his superiors to support his separation.  Contrary to his assertions, we have seen no evidence showing his substantial rights were violated, the information in his discharge case file is erroneous, or his commanders abused their discretionary authority.  Accordingly, we find no basis upon which to favorably consider the applicant’s requests.  

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 14 June 2005, under the provisions of AFI 36‑2603:

The following documentary evidence was considered for AFBCMR Docket Number BC-2004-03866:

     Exhibit A.  DD Form 149, dated 19 Nov 04, with attachments.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFRC/DPMB, dated 18 Feb 05.
     Exhibit D.  Letter, SAF/MRBR, dated 4 Mar 05.