RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-01174
								INDEX CODE:  106.00
	XXXXXXXXXXXXX	  			COUNSEL:  NONE

								HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  4 October 2008

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

His discharge should be upgraded due to the fact he served his initial obligation of four years.

He admitted to an infraction that he was not guilty of.

In addition to the negative views his present discharge presents to employers, the discharge inhibits the possibility of federal employment in his present state of residence.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 2 July 1979, and served as a Law Enforcement Specialist.

Although not used as a basis for discharge, applicant’s records contain the following derogatory data:         

a.	Denial of Air Force Good Conduct Medal, dated 10 June 1981

b.	Non-recommendation for reenlistment, dated 17 December 1981

c.	Non-recommendation for reenlistment, dated 22 June 1982

d.	Vacation of NCO Appointment, dated 17 August 1983

On 24 October 1983, applicant was notified of his commander's intent to recommend him for an under honorable conditions (general) discharge for misconduct – pattern of minor disciplinary infractions, specifically:

a.	Article 15, dated 13 May 1981, for, on or about 28 April 1981, being disrespectful in language towards a superior NCO who was then in the execution of his office, and for, on or about 28 April 1981, failing to obey a lawful order of a superior NCO who was then in the execution of his office, by failing to sweep and police up an area after being directed to do so, for which he received a suspended reduction to the grade of Airman (E-2) and forfeiture of $25.00 pay per month for three months   

b.	Letter of Reprimand, dated 27 July 1983, for, on or about 17 July 1983, becoming involved in a domestic disturbance at his quarters in base housing which resulted in damage to government property

c.	Letter of Reprimand, dated 22 August 1983, for, on or about 17 July 1983, rendering a urinalysis sample, Commander Directed as a result of the circumstances surrounding a domestic disturbance at his government quarters, which tested positive for marijuana

The commander advised applicant of his right to consult legal counsel, submit statements in his own behalf, or waive the above rights after consulting with counsel.   

On 24 October 1983, after consulting with counsel, applicant waived his right to submit a personal statement and requested a personal appointment before the discharge authority.  On 3 November 1983, he was placed on medical hold due to a problem discovered in his separation physical.

A legal review was conducted on 4 November 1983, in which the staff judge advocate recommended applicant be discharged for misconduct with a general discharge characterization.  On 17 November 1983, the discharge authority, directed that applicant be discharged with a general discharge characterization, and stated that he did not take into consideration the positive urinalysis result when he characterized his discharge as general.

Applicant was discharged on 22 November 1983, in the grade of Senior Airman (E-4), with an under honorable conditions discharge, in accordance with AFR 39-10, paragraph 5-46, for misconduct – pattern of minor disciplinary infractions.  He served a total of four years, four months, and 21 days. 

A resume of applicant's performance reports follows:  

	PERIOD ENDING 				OVERALL EVALUATION

	21 Oct 1983         	 		7
	30 Mar 1983         			8
	10 Oct 1982    				8
	10 Oct 1981         			9
	 5 Jan 1981					8

Applicant is entitled to wear the Air Force Training Ribbon and the Air Force Longevity Service Award Ribbon.

Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report which is at Exhibit C.

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AIR FORCE EVALUATION:

None.  The applicant has not shown the characterization of his discharge was contrary to AFR 39-10 (extract copy attached as Exhibit F), nor has he shown that the nature of the discharge was unduly harsh or disproportionate to the offense committed.  At the time of his discharge, AFR 39-10, paragraph 1-18b, stated that characterization of service as general was warranted if an airman’s service had been honest and faithful, but significant negative aspects of the airman’s conduct or performance of duty outweighed positive aspects of the airman’s military record.  AFR 39-10, paragraph 5-46, further stated that a pattern of misconduct consisting solely of minor disciplinary infractions in the current enlistment makes an airman subject to discharge.  The infractions contemplated under this section may involve failure to comply with non-punitive regulations or minor offenses under the UCMJ.  Infractions of this type result, as a rule, in informal (reduced to writing) or formal counselings, letters of reprimand, or Article 15 nonjudicial punishments.

The applicant has not alleged any impropriety in the manner in which the discharge was conducted, and the record indicates he was afforded all rights to which he was entitled.  However, notwithstanding the absence of error or injustice, the Board has the prerogative to grant relief on the basis of clemency if so inclined.

On 17 April 2007, the SAF/MRB Legal Advisor provided a generic opinion concerning service characterization which is contained at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the 17 April 2007 SAF/MRB Legal Advisory was forwarded to the applicant on 9 May 2007, for review and comment within 30 days.  However, as of this date, no response has been received by this office.  Additionally, applicant was given a chance on 9 May 2007 to provide information within 30 days pertaining to his activities since leaving the service.  As of this date, no response has been received by this office.

A copy of the FBI, Clarksburg, WV, Report of Investigation was forwarded to the applicant on 9 May 2007 for review and comment within 30 days.  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.  We find no impropriety in the characterization of applicant's discharge.  It appears that responsible officials applied appropriate standards in effecting the separation, and we do not find persuasive evidence that pertinent regulations were violated or that applicant was not afforded all the rights to which entitled at the time of discharge.  We conclude, therefore, that the discharge proceedings were proper and characterization of the discharge was appropriate to the existing circumstances.

4.  We also find insufficient evidence to warrant a recommendation that the discharge be upgraded on the basis of clemency.  We have considered applicant's overall quality of service, the events which precipitated the discharge, and the absence of any evidence related to post-service activities and accomplishments.  Based on the evidence of record, we cannot conclude that clemency is warranted.  Applicant has not provided any information concerning his post-service activities and accomplishments for us to conclude that he has overcome the behavioral traits which caused the discharge.  Should he provide statements from community leaders and acquaintances attesting to his good character and reputation and other evidence of successful post-service rehabilitation, this Board will reconsider this case based on the new evidence.  We cannot, however, recommend approval based on the current evidence of record.

5.  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 issue(s) 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-2007-01174 in Executive Session on 11 July 2007, under the provisions of AFI 36-2603:

				XXXXXXXXXX, Panel Chair
				XXXXXXXXXX, Member
				XXXXXXXXXX, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Apr 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, US DOJ FBI, dated 27 Apr 07.
    Exhibit D.  Letter, SAF/MRB Legal Advisor, dated 17 Apr 07.
    Exhibit E.  Letter, AFBCMR, dated 9 May 07.
    Exhibit F.  AFR 39-10 Extracts, dated 1 Oct 82.

                                   XXXXXXXXXX
                                   Panel Chair