RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-01469
								INDEX CODE:  110.00
	XXXXXXXXXXXXXXXXX			COUNSEL:  NONE

								HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  8 November 2008

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APPLICANT REQUESTS THAT:

His characterization of service be upgraded from general to honorable.

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APPLICANT CONTENDS THAT:

At the time of his discharge, he was not advised as to the impact his reenlistment code (RE) would have on his reentry into military service.

He made mistakes; however, he received favorable Enlisted Performance Reports (EPR).

He was not recommended for rehabilitation, mentored, or offered counseling.  AFIs have changed since 1988, to include mentoring and rehabilitation for young airmen.

He has matured and been a responsible husband and father since this incident at age 22, and desires to rejoin the military in a Reserve status.

In support of his appeal, he has submitted copies of EPRs for the periods 5 February 1986 through 4 February 1987, and 5 February 1987 through 4 February 1988.

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 5 February 1986 for a period of four years, and served as a services specialist. 

On 28 October 1988, applicant was notified of his commander's intent to recommend him for an under honorable conditions (general) discharge for misconduct, specifically, minor disciplinary infractions.

The commander stated the following reasons for the proposed discharge:         

a.	On 4 March 1988, he drove a motor vehicle off base while under the influence of alcohol, and was convicted by civil authorities on 21 March 1988.  He received a Letter of Reprimand (LOR), dated 7 April 1988

b.	On 22 August 1988, he was derelict in the performance of his known duties in that he was not prepared for shift change and did not have his kitchen up to sanitation standards.  He received an LOR dated 31 August 1988

c.	On or about 31 August 1988, he failed to go at the time prescribed to his appointed place of duty.  He received an Article 15, and punishment consisted of a reduction to the grade of Airman, suspended until 11 March 1989, and 30 consecutive days correctional custody, later remitted to 18 consecutive days

d.	On or about 13 October 1988, he willfully disobeyed a direct order not to drive an automobile on Minot AFB.  He received an Article 15, and punishment consisted of a reduction to the grade of Airman Basic

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 28 October 1988, after consulting with counsel, applicant indicated he intended to submit statements in his own behalf; however, they are not contained in his master personnel records.  

A legal review was conducted on 2 November 1988, in which the staff judge advocate recommended applicant be discharged for misconduct with a general discharge characterization, and denial of probation and rehabilitation since he had failed to respond to past rehabilitative efforts.  

A resume of applicant's performance reports follows:  

	PERIOD ENDING 				OVERALL EVALUATION

	 4 Feb 1988         	 		8
	 4 Feb 1987	        			7

His records reflect he is entitled to wear the Air Force Overseas Short Tour Ribbon, Air Force Training Ribbon, and Air Force Outstanding Unit Award.

Applicant was discharged on 17 November 1988 in the grade of Airman Basic (E-1), with an under honorable conditions (general) discharge, in accordance with AFR 39-10, paragraph 5-46, for misconduct – minor disciplinary infractions.  Probation and rehabilitation was considered, but not offered.  He served a total of 2 years, 9 months, and 13 days net active service. 

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 G), 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 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 nonpunitive regulations or minor offenses under the UCMJ, and that infractions of this type result, as a rule, in informal (reduced to writing) or formal counselings, LORs, 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 13 June 2007 for review and comment within 30 days.  Additionally, applicant was given a chance on 13 June 2007 to provide information within 30 days pertaining to his activities since leaving the service.  Applicant responded by providing a letter from the Cathedral Parish of St. Columba, dated 27 June 2007.  Applicant’s complete response is at Exhibit F. 

A copy of the FBI, Clarksburg, WV, Report of Investigation was forwarded to the applicant on 13 June 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.  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 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 available 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 sufficient information of post-service activities and accomplishments for us to conclude that applicant has overcome the behavioral traits which caused the discharge. Should applicant provide statements from community leaders and acquaintances attesting to applicant's 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.

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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-2007-01469 in Executive Session on 24 July 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Apr 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, US DOJ FBI, dated 24 May 07.
    Exhibit D.  Letter, SAF/MRB Legal Advisor, dated 17 Apr 07.
    Exhibit E.  Letters, AFBCMR, dated 13 Jun 07, w/atchs.
    Exhibit F.  Letter, Cathedral Parish of St. Columba, dated 
                27 Jun 07.
    Exhibit G.  AFR 39-10 Extract, dated 1 Apr 88.