RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2006-00227
		INDEX CODE:  100.00, 112.00
		COUNSEL:  
		HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  27 JUL 07

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APPLICANT REQUESTS THAT:

1.  He be enrolled in the Montgomery GI Bill.

2.  He be released from repaying his enlistment bonus.

3.  His reenlistment eligibility (RE) code be changed.

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APPLICANT CONTENDS THAT:

His discharge was misinterpreted.  Medical records along with other documentation states he should have been able to complete the term of his enlistment.

In support of his request, the applicant provided documents extracted from his military personnel records

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

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STATEMENT OF FACTS:

Applicant entered active duty in the Regular Air Force on 17 May 2000 in the grade of airman basic.  He was progressively promoted to the grade of airman first class having assumed that grade effective and with a date of rank of 14 July 2000.  On 17 October 2002, applicant was notified by his commander that he was recommending he be discharged from the Air Force under the provisions of AFPD 36-32 and AFI 36-3208, chapter 5, section E, paragraph 5.26.1.  The specific reasons for this action included two Letters of Reprimands (LORs) for failure to report to work on time and failure to comply with an order.  He also received two Letters of Counseling (LOCs) for providing his first sergeant with misinformation and his failure to report to work on time.  He was advised of his rights in this matter and acknowledged receipt of the notification on that same date.  After consulting with counsel the applicant submitted statements on his own behalf.  In a legal review of the case file, the staff judge advocate found the case legally sufficient and recommended that he be discharged.  On 5 November 2002, the discharge authority concurred with the recommendations and directed that he be discharged with a general (under honorable conditions) discharge, without probation and rehabilitation.  Applicant was discharged on 5 November 2002.  He served 2 years, 5 months and 18 days on active duty.  He received an RE code of 2B – separated with a general or under-other-than-honorable conditions (UOTHC) discharge and an SPD code of JHJ – unsatisfactory performance.

On 20 May 2004 the Air Force Discharge Review Board (AFDRB) considered and approved the applicant’s request that his general discharge be upgraded to an honorable discharge and his RE code be changed.  AFDRB concluded the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and that the applicant was provided full administrative due process.  However, his overall quality of service was more accurately reflected by an honorable characterization.  Also, his RE code was changed from 2B to 2C – involuntarily separated with an honorable discharge; or entry level separation without characterization of service (Exhibit B).

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AIR FORCE EVALUATION:

AFPC/DPPAT provides no recommendation.  DPPAT states in order to qualify for MGIB benefits, the applicant’s discharge reason must be hardship, service-connected disability, disability existing prior to entering active duty, physical or mental condition that interferes with duty, e.g., personality disorder, or reduction in force.  One of these discharge reasons will qualify the applicant for MGIB benefits based on the number of months served.

The DPPAT complete evaluation is at Exhibit C.

AFPC/DPPRS recommends denial.  DPPRS states the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  Applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing nor did he provide facts warranting a change to his RE code.

The DPPRS complete evaluation is at Exhibit D.

AFPC/DPPAE recommends denial.  DPPAE states they found no evidence of injustice or error which would suggest the current RE code of 2C is not applicable.  Nor did the applicant submit any evidence supporting an injustice or error.  Unless the SPD code (JHJ) is changed by Separations, the recoupment will be required.

The DPPAE complete evaluation, with attachments, is at Exhibit E.

AFPC/JA recommends denial.  JA states notwithstanding the AFDRB’s decision to upgrade the applicant’s discharge to honorable, he is still ineligible to receive MGIB benefits.  As the applicant enlisted for a period of six years, he was required to serve at least three years on active duty to be entitled to MGIB benefits with the discharge basis reflected on his DD Form 214.  Because he did not serve the required time, he is ineligible to collect education benefits.

In regard to his request to waive recoupment of his enlistment bonus, this request is without merit.  Although rules concerning bonuses awarded during initial enlistments are governed by AFI 36-3002 and bonuses are controlled by AFI 36-2606.  The provision dealing with repaying bonuses requires that “Airman must remain technically qualified [in their AFSC] and complete the full term of enlistment...[f]ailure to do so may result in termination and recoupment.”  The Defense Finance and Accounting Service (DFAS) use a discharged Airman’s SPD code to determine if recoupment is appropriate.  Under the current DFAS guidance, the applicant’s SPD – JHJ – will properly trigger an action to recoup his enlistment bonus.

The JA complete evaluation is at Exhibit F.

DFAS-POCC/DE recommends denial.  DFAS states upon separation, the applicant incurred a debt in the amount of $8,131.43.  The debt resulted from an overpayment of his allotments that paid after date of separation for the period November 2002 through January 2003 and a Selective Enlistment Bonus (SEB) recoupment.  The applicant remains liable for the indebtedness to the government.  His SPD code reflects “JHJ,” unsatisfactory duty performance, which signifies that the applicant’s bonus must be recouped at date of separation.

The DFAS complete evaluation, with attachments, is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 19 May 2006, copies of the Air Force evaluations were forwarded  to the applicant for review and response within 30 days (Exhibit H).  As of this date, this office has received no response.

On 12 July 2006, copies of the Air Force evaluations were forwarded to the counsel for review and response within 30 days (Exhibit I).  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 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 an error or injustice.  After a thorough review of the documentation provided, we find no evidence which would persuade us that the regulations in effect at the time were not appropriately applied or that he was treated differently than others in similar situations.  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.  In the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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 the evidence presented did not demonstrate the existence of an error or an injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2006-00227 in Executive Session on 22 August 2006, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 13 Jan 06, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPAT, dated 28 Feb 06.
   Exhibit D.  Letter, AFPC/DPPRS, dated 9 Mar 06.
   Exhibit E.  Letter, AFPC/DPPAE, dated 14 Mar 06, w/atchs.
   Exhibit F.  Letter, AFPC/JA, dated 10 Apr 06.
   Exhibit G.  Letter, DFAS-POCC/DE, dated 11 May 06, w/atchs.
   Exhibit H.  Letter, SAF/MRBR, dated 19 May 06.
   Exhibit I.  Letter, SAF/MRBC, dated 12 Jul 06.