RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2006-00131
		INDEX CODE:  110.02

		COUNSEL:  NONE

		HEARING DESIRED: NO

MANDATORY CASE COMPLETION DATE:  15 JUL 2007

___________________________________________________________________

APPLICANT REQUESTS THAT:

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

___________________________________________________________________

APPLICANT CONTENDS THAT:

He is entitled to an upgrade of his discharge.  Even though he was discharged on 22 Feb 78, in accordance with Civil Action No. 77-0904, 27 Nov 79, it was deemed that giving a less-than-honorable discharge for urinalysis failure was illegal.

In support of his appeal, applicant submitted a copy of his DD Form 214, Report of Separation from Active Duty, dated 22 Feb 78.

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

___________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 31 Mar 75 for a period of four years in the grade of airman basic.  He was progressively promoted to the grade of airman first class with an effective date and date of rank of 31 Mar 76.  

On 23 Nov 77, the squadron commander initiated administrative discharge action against the applicant for misconduct; specifically, his civil court conviction on 10 Oct 77.  The specific reasons for the proposed action were:

	Possession of methyl amphetamine hydrochloride without being duly authorized.  Two counts of possession of cannabis resin without being duly authorized.  

	Other incidents supporting the recommended action were:  on 6 Jul 77, applicant received a Record of Counseling (ROC) for failure to go.  He was convicted on 30 Jun 77 of fraudulent use of a vehicle excise license, keeping a motor vehicle with no vehicle excise license, using a motor vehicle with no insurance, and using a motor vehicle with no test certificate.  On 3 Oct 77, he received an ROC for dereliction of duty.  On 4 Oct 77, he received an ROC for failure to go to a scheduled Social Actions appointment.  On 17 Oct 77, he received an ROC for dereliction of duty and on 31 Oct 77, he received a Letter of Reprimand for operating a vehicle without a test certificate, road tax, and insurance.

On that same date, applicant acknowledged receipt of the discharge notification.  On 28 Nov 77, after consulting with counsel, having been advised of his rights, applicant submitted a conditional waiver of his rights associated with an administrative discharge board hearing contingent on his receipt of no less than an honorable discharge.  On 16 Dec 77, the Staff Judge Advocate (SJA) found the case legally sufficient to support discharge.  He recommended the conditional waiver be disapproved based on the type of offenses of which the applicant was convicted and his past record of disciplinary problems.  On 23 Dec 77, the wing commander rejected the conditional waiver and advised the applicant be informed that he may submit an unconditional waiver or he may submit his case to an administrative discharge board.

On 12 Jan 78, the applicant amended his original conditional waiver and waived his rights associated with an administrative discharge board hearing contingent on his receipt of no less than a general discharge.  On that same date, applicant’s military counsel informed the SJA that when he advised the applicant to submit the first conditional waiver, he was unaware of the provisions which only permit the submission of one conditional waiver.  On 27 Jan 78, the SJA recommended that since it appeared the applicant was given incorrect legal advice, that the wing commander approves the waiver for a general discharge.  On 31 Jan 78, the wing commander accepted the conditional waiver and recommended approval of a general discharge and stated that probation and rehabilitation (P&R) was considered and deemed inappropriate based on the frequency and nature of his involvements.  On 10 Feb 78, the Major Command SJA reviewed the case file and found it legally sufficient.  He recommended approval of the general discharge without P&R.  On 11 Feb 78, the discharge authority approved the general discharge, without P&R and directed issuance of a DD Form 257AF.

On 22 Feb 78, the applicant was discharged under the provisions of AFR 39-12 with service characterized as under honorable conditions, general.  He served 2 years, 10 months, and 22 days on active duty.

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS recommended applicant’s request be denied.  Based on documentation in the file, they found the discharge consistent with the procedural and substantive requirements of the discharge regulation.  Additionally, the discharge was within the sound discretion of the discharge authority.  They also noted applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing and provided no other facts warranting a change to his character of service.  

A complete copy of the evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the evaluation, applicant admits to being young and reckless.  In his address of the possession of drugs, he was young and influenced by his peers.  Although he did engage in this activity, in order to protect his peers, he took total blame for everything including discovered substances that was not his.  He further explained the circumstances surrounding the fraudulent use of a vehicle excise license, test certificate and insurance.  He further provided a brief summary of his accomplishments since his discharge (Exhibit F).

On 18 April 2006, a copy of the FBI report was forwarded to the applicant for comment.  At that time, the applicant was also invited to provide additional evidence pertaining to his activities since leaving the service (Exhibit G).  As of this date, no response has been received by this office.

___________________________________________________________________

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.  Applicant’s contentions are duly noted.  However, we do not find his arguments sufficiently persuasive to override the rationale provided by the Air Force.  The evidence of record reflects the applicant was convicted by civil court for wrongful use of methyl amphetamine hydrochloride and cannabis resin resulting in a general (under honorable conditions) discharge.  No evidence has been presented which would lead us to believe that the applicant’s service characterization was improper.  In view of the seriousness of the offenses committed during the period of service under review and the absence of evidence related to his post-service activities and accomplishments, we are not persuaded that an upgrade of the characterization of his discharge to fully honorable is warranted.  Therefore, in the absence of persuasive evidence to the contrary, we adopt the Air Force rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice and conclude that no basis exists to recommend granting the relief sought in this application.  

___________________________________________________________________

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.

___________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2006-00131 in Executive Session on 24 May 2006, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Jan 06, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, HQ AFPC/DPPRS, dated 26 Jan 06.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Feb 06.
    Exhibit F.  Letter, Applicant, dated 7 Feb 06.
    Exhibit G.  Letter, AFBCMR, dated 18 Apr 06.