RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01414
		INDEX CODE:  110.02

		COUNSEL:  NONE

		HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be upgraded to honorable and his reenlistment code (RE) be changed to one that would allow him to enlist in the Army.

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APPLICANT CONTENDS THAT:

Since his discharge in 1986, he has striven to better himself in every way possible.  He spent four years in college and has been a mechanical/electrical engineer for the past 12 years.  He is devoted to his family, fitness and health.  He donates hundreds of hours of time and resources every year to a non-profit animal shelter. He has been an upstanding citizen of his community for many years.  He notes his credit score is 744 and he has never had any infractions with the law.  He enjoys competing in marathons and endurance sports.  He recently took the ASVAB test in order to reenlist (he scored a 93) and found out that his reenlistment (RE) code he received at his discharge was one that would not allow reenlistment.  He feels a strong injustice is being served when he has worked so hard for atonement in himself only to be punished 22 years later by the foolish actions of a 19 year-old airman at the time.  He feels the original punishment he received was heavy-handed and was in response to the Graham-Rudman-Holling Balanced Budget Act that had many leaders of all the service branches scrambling to cut their budgets by any means necessary.  His punishment consisting of loss of rank and forfeiture of pay was just and fair and should have been considered sufficient for a first time offense of an otherwise outstanding airman.  He would like the opportunity to enlist in the Army.

In support of his appeal, the applicant has provided a personal statement and copies of statements of support.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 23 March 1984.  He was progressively promoted to his highest grade held of Airman First Class (E-3) with a date of rank of 23 May 1985.  On 3 February 1986, he received an article 15 for the wrongful use and distribution of marijuana on different occasions between the dates of 1 September 1985 to 15 November 1985. His punishment consisted of reduction in grade to airman (E-2) and forfeiture of $100.  On 14 April 1986, his commander recommended he receive a general, under honorable conditions (UHC) discharge in accordance with Air Force Regulation (AFR) 39-10 for commission of a serious offense – drug abuse.  As was Air Force policy, his commander considered the applicant for Probation & Rehabilitation (P&R) but decided to deny P&R because of the applicant’s distribution of marijuana to other airman.  Applicant met with counsel and submitted statements on his behalf.  On 22 April 1985, his general discharge was found legally sufficient. He was discharged effective 12 May 1986 after serving for 1 year, 8 months, and 29 days.

The applicant appealed to the Discharge Review board (DRB) to have his general discharged upgraded to honorable.  The DRB convened on 4 June 1987 and denied his request.

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AIR FORCE EVALUATION:

None.  The applicant has not shown the characterization of his discharge was contrary to the provisions of AFR 39-17, Unfitness, (Exhibit C).  Nor has he shown the nature of the discharge was unduly harsh or disproportionate to the offenses committed.   At the time of the applicant’s discharge, AFR 39-17, paragraph 8, stated that when discharged because of unfitness, an Undesirable Discharge (UD) will be furnished.  However, in 1959, AFR 39-17 was changed to state that an airman discharged under this regulation should be furnished an undesirable discharge, unless the particular circumstances in a given case warrants a general or honorable discharge. Criteria for the issuance of an undesirable, general, or honorable discharge is outlined in paragraph 9, AFR 39-10 (See Exhibit D).  Notwithstanding the absence of error or injustice, the Board has the prerogative to grant relief on the basis of clemency if so inclined.

Attached at Exhibit E is a memorandum prepared by the Air Force Review Boards Agency Legal Advisor addressing the issue of characterization of service and how standards have changed since 1959.

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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 with regard to upgrading his general discharge to an honorable discharge.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the actions his commander at the time took regarding his general discharge, reduction in grade and forfeiture of pay.  The discharge appears to be in compliance with the governing regulation and was found to be legally sufficient.  We find no evidence to indicate that his general discharge from the Air Force was inappropriate or otherwise undeserved.  We find no indication of error in this case and after thoroughly reviewing the documentation that has been submitted in support of applicant's appeal, we do not believe he has suffered from an injustice that would merit an upgrade of his discharge.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider his request.

4.  Notwithstanding the above, we do not believe he should be denied the opportunity to apply for enlistment with the service component of his choosing.  Whether or not he is successful will depend on the needs of the service and our recommendation in no way guarantees that he will be allowed to return to any branch of the service.  Therefore, we recommend the applicant's records be corrected to the extent indicated below.

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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 12 May 1986, he was separated under the provisions of AFR 39-10, paragraph 1.2 (Secretarial Authority) with a reenlistment eligibility (RE) code of 3K.

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The following members of the Board considered AFBCMR Docket Number BC-2007-01414 in Executive Session on 14 June 2007, under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 May 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Excerpt, AFR 39-17, dated 9 Feb 54.
    Exhibit D   Excerpt, AFR 39-10, undated.
    Exhibit E.  Memo, AFBCMR Legal Advisor, dated 17 Apr 07.

                                   

DEPARTMENT OF THE AIR FORCE
WASHINGTON DC

Office Of The Assistant Secretary