RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2005-00329
		INDEX NUMBER:  131.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  26 Jul 06

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APPLICANT REQUESTS THAT:

He be restored to the grade of senior airman (SrA).

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APPLICANT CONTENDS THAT:

The Air Force Discharge Review Board (AFDRB) determined that his discharge was inequitable and upgraded the character of his discharge to honorable.  Therefore, he is requesting that he be restored to the previous grade of SrA he held before the inequity occurred.

In support of his appeal, applicant provides copies of the documentation related to the AFDRB action and a copy of his amended DD Form 214.

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

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STATEMENT OF FACTS:

The applicant served on active duty from 19 Aug 98 to 3 Aug 01.  On 29 Jul 01, the applicant’s squadron commander notified him he was recommending his discharge from the Air Force for a pattern of misconduct.  The reasons for the commander’s action were:

	  a.  On 23 Jul 01, he received a letter of reprimand (LOR) for assaulting his wife.

	  b.  He received punishment under Article 15 on 11 Jul 01 for driving on base with a suspended driver’s license and for leaving his appointed place of duty without permission.  Punishment consisted of reduction to the grade of airman basic (AB) with a new date of rank of 11 Jul 01.

	  c.  He received an LOR on 7 Jun 01 for failing to turn in his airline tickets after his TDY was cancelled enroute to a permanent change of station.

The applicant acknowledged receipt of the notification on 29 Jul 01 and indicated he had consulted counsel and waived his right to submit statements on his behalf.  On 1 Aug 01, the squadron commander recommended to the wing commander the applicant be discharged from the Air Force with an under honorable conditions (general) discharge.  He also recommended the applicant not receive probation and rehabilitation.  On 2 Aug 01, the wing staff judge advocate found the action against the applicant legally sufficient and recommended the applicant be discharged without probation and rehabilitation and given an under honorable conditions (general) discharge.  In a letter dated 4 Aug 01, the wing commander directed the applicant be discharged with an under honorable conditions (general) discharge.  Although the letter directing the applicant’s discharge is dated 4 Aug 01, the applicant’s DD Form 214 reflects he was discharged on 3 Aug 01.

On 23 Aug 02 the Air Force Discharge Review Board (AFDRB) denied an appeal from the applicant to upgrade his discharge to honorable.  On 20 Apr 04, the AFDRB again considered the applicant’s appeal to have his discharge upgraded to honorable, to change the reason and authority for his discharge, and to change his reenlistment eligibility (RE) code.  The AFDRB approved upgrade of the applicant’s discharge to honorable and changed his RE code to “3K.”

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request to restore his grade to SrA.  Considering the action of the AFDRB, they believe no further relief is warranted.  The AFDRB concluded the applicant’s discharge was appropriate, but the characterization of service should be changed to honorable and his RE code changed to allow the applicant’s entry into the Reserves.  The applicant’s commander concluded the applicant had committed the two offenses he was charged with.  This case illustrates the difficulty of addressing factual issues long after the fact.  The Article 15 paperwork indicates the applicant consulted a lawyer and chose not to present any matters to the commander.  He also did not appeal the punishment he received.  Since the applicant chose to waive his right to present evidence to his commander, applicant’s claim now that the evidence is different should not be heard.  Additionally, the AFDRB record makes it clear the applicant chose to drive on base in willful disregard of the order not to do so.  If the applicant had come forward with proof he had a valid license, it is likely the commander would have modified the allegation against him.  It is a reasonable assumption the applicant chose not to contest the allegations because he knew he had committed an offense with regard to driving on base and saw no point in contesting the issue.  

They disagree the applicant’s reduction in grade was inequitable.  They believe the punishment given the applicant was and still is appropriate.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation of AFLSA/JAJM.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 1 Apr 05 for review and comment within 30 days.  To date, a response has not been received.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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-2005-00329 in Executive Session on 10 May 05, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Jan 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 28 Feb 05.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 10 Mar 05.
    Exhibit E.  Letter, SAF/MRBR, dated 1 Apr 05.

                                  
                                   Panel Chair