RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-01854
								INDEX CODE:  106.00
	XXXXXXXXXXXXXXX  			COUNSEL:  NONE

								HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  11 December 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:

Although he had a DUI in Clovis, NM, the charges were dismissed, yet the Air Force still wanted to punish him.

In prior years, he had been awarded the Good Conduct Medal with two Oak Leaf Clusters, the Air Force Longevity Service Ribbon with two Oak Leaf Clusters, the National Defense Service Medal, had served 14 years of honorary service, and feels this one mistake was unjust.

He was not aware until now that he could get his discharge upgraded.  He is 60 years old and wants a clean military record.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

Applicant initially enlisted in the Regular Air Force on 5 August 1966, and was honorably released from active duty and transferred to the United States Air Force Reserve on 4 August 1970.  He again enlisted in the Regular Air Force on 13 April 1971, and served continuously until being honorably discharged on 20 September 1979.  He once more enlisted in the Regular Air Force on 14 May 1982, and was serving as an aircraft maintenance technician when discharged.  

On 18 July 1984, applicant was notified of his commander's intent to recommend him for an under honorable conditions (general) discharge for a pattern of misconduct. 

The commander stated the following reasons for the proposed discharge:         
         
a.	On 19 December 1982, he was issued a traffic citation on Clovis AFB, NM, for driving 40 MPH in a 30 MPH zone

b.	On 31 December 1982, he uttered a worthless financially negotiable instrument to the NCO Club in the sum of $25.00, for which he received a Record of Individual Counseling

c.	On 11 February 1983, he was advised in writing concerning the speed limit on all courts and loops in base housing

d.	On 19 February 1983, he was apprehended for driving under the influence, refusing to submit to chemical testing, and knowingly operating a defective vehicle, for which he received an Article 15.  Punishment consisted of reduction to the grade of Sergeant, suspended until 4 October 1983, forfeiture of $75.00 per month for two months, and seven consecutive days of extra duty

e.	On 14 April 1983, he failed to show for a Group Counseling Session at Social Actions

f.	On 17 April 1983, he was apprehended by civil authorities for protective custody due to his intoxicated state and the fact he was walking in the middle of the road, for which he received a Letter of Reprimand, dated 3 May 1983

g.	On 20 September 1983, he received a letter concerning the appearance of his base housing unit; the grass needed mowing/trimming, and backyard appearance

h.	On 17 October 1983, a Letter of Indebtedness for $47.00 was received

i.	On 3 June 1984, he was apprehended for driving under the influence in Clovis, NM, for which he received a Letter of Reprimand, dated 5 June 1984

j.	On 3 July 1984, he declined to participate in the Alcohol Rehabilitation Program

The commander advised applicant of his right to consult legal counsel, present his case to an administrative discharge board, be represented by legal counsel at a board hearing, submit statements in his own behalf in addition to, or in lieu of the board hearing, or waive the above rights after consulting with counsel.   

On 18 July 1984, after consulting with counsel, applicant offered a conditional waiver of his rights associated with an administrative discharge board, contingent on his receiving no less than a general discharge under honorable conditions.  

A legal review was conducted on 30 July 1984, in which the staff judge advocate noted that applicant had offered a conditional waiver of his board hearing contingent on his receiving a general discharge.  They found the case to be legally sufficient, the initiating commander’s recommendation for a general discharge appropriate, the initiating commander’s determination that applicant was not a desirable candidate for P& R to be correct, and recommended the case be forwarded to 12 AF for further processing.  

On 17 August 1984, 12 AF/JA found the case file to be complete and correct.  On that same date, 12 AF/CV directed that applicant be discharged due to a pattern of misconduct prejudicial to good order and discipline, and issued a general discharge.  12 AF/CV also noted that the service characterization was appropriate because of applicant’s 14 years of satisfactory service.   

A resume of applicant's last 10 performance reports follows:  

	PERIOD ENDING 				OVERALL EVALUATION

	17 Jul 1984         	 		2
	29 Dec 1983         			8
	29 Dec 1982     				8
	 4 Jan 1979         			6 (referral)
	15 Jun 1978					9 
	14 Oct 1977					9
	27 Feb 1977					8
	27 Feb 1976					9 (firewall)
	27 Feb 1975					9
	21 Jul 1974					9

Applicant’s records indicate he is entitled to wear the Air Force Good Conduct Medal with two Oak Leaf Clusters, the Air Force Longevity Service Ribbon with two Oak Leaf Clusters, the National Defense Service Medal, and the Air Force Outstanding Unit Award with one Oak Leaf Cluster.  His records also indicate he was denied the Air Force Good Conduct Medal on 16 May 1979, 4 August 1983, and 18 October 1983. 

On 28 August 1984, applicant was discharged in the grade of Staff Sergeant (E-5), with an under honorable conditions discharge, in accordance with AFR 39-10, paragraph 5-47, misconduct – pattern of discreditable involvement with military or civil authorities.  He served a total of 2 years, 3 months, and 15 days of net active service during his last enlistment, and 12 years, 5 months, and 9 days net active service in previous enlistments. 

Pursuant to the Board's request, the Federal Bureau of Investigation, Clarksburg, WV, indicated that on the basis of the data furnished, they were unable to locate an arrest record (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 offenses 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 5-47, further stated that a pattern of misconduct in the current enlistment makes an airman subject to discharge.  Discreditable involvement with military or civil authorities included acts for which the member was, or might have been, punished under the UCMJ, and could be part of the pattern.  They could be cited to show a pattern of misconduct if they did not include conviction by civilian authorities, or action tantamount to a finding of guilty when a punitive discharge would be authorized for the same or closely related offense under the MCM, or the sentence by civilian authorities included confinement for 6 months or more.  Conduct prejudicial to good order and discipline included conduct of a nature that tends to disrupt order, discipline, or morale within the military community.  It also included conduct of a nature that tends to bring discredit on the Air Force in the view of the civilian community, to include dishonorable failure to pay just debts.

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.  Thus, by choosing to offer a conditional waiver of his rights associated with an administrative discharge board, contingent on his receiving no less than a general discharge under honorable conditions, it appears he was aware of the possibility of receiving a general discharge.  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 July 2007, for review and comment within 30 days.  Additionally, applicant was given a chance on 9 July 2007 to provide information within 30 days pertaining to his activities since leaving the service.  

Applicant responded via an undated letter in which he stated that while he can’t say that he has become a pillar of the community in these past 20 plus years, he has worked hard, has lived an every day-to-day life, and has never been in trouble with the law; not even a traffic ticket.

He stated that over one half of his 14 plus years in the Air Force were during the war years, when people were needed and could do no wrong.  After the war was over and they were no longer needed, new policies were put into place to get rid of people in order to avoid having to pay retirement; hence, the “fat boy” program.  He has always had a problem with his weight and still does today.  This wasn’t a problem during the war, but became one, and they would deny reenlistment for this reason and just about any other reason to keep people close to retirement from getting their 20 years in.

Although he did get a DUI in Clovis, NM, the charges were dropped and are not on his record, yet the Air Force insisted on persecuting him on-base, took away his on-base driving privileges, and made him attend their on-base DUI program.  He was told by his first sergeant that his reenlistment would probably be denied, so he took a discharge.  That was a bad year in his life as he was having marital problems and was seeing an Air Force “shrink”, but he submits that had these problems arisen a few years earlier, the Air Force would have helped him get through them, and he would have gotten through them and retired.  

During his 14.5 years, his record was unblemished and throughout all of these years of faithful service, he had one lapse of good judgment and has to pay for it the rest of his life.  He feels he has paid for his sin and been humiliated long enough, and appeals that his many years of dedication, and the best years of his life, be considered and he be forgiven for his one lapse of good judgment.

Applicant’s complete response is at Exhibit F.

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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.  By choosing to offer a conditional waiver of his rights associated with an administrative discharge board, contingent on his receiving no less than a general discharge under honorable conditions, it appears he was aware of the possibility of receiving a general discharge.  We conclude, therefore, that the discharge proceedings were proper and characterization of the discharge was appropriate to the existing circumstances, and the applicant has not been the victim of an error or injustice.  .

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.  Although applicant alleges his record was unblemished and throughout all of his years of faithful service he had one lapse of good judgment, his record reflects numerous incidents of misconduct to include financial irresponsibility, failure to go, two incidents of driving under the influence, one incident of being apprehended by civil authorities due to his intoxicated state, and declining to participate in the Alcohol Rehabilitation Program.  Based on the evidence of record, we cannot conclude that clemency is warranted.

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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-2007-01854 in Executive Session on 15 August 2007, under the provisions of AFI 36-2603:

				

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Jun 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Negative FBI Report, dated 20 Jun 07.
    Exhibit D.  Letter, SAF/MRB Legal Advisor, dated 17 Apr 07.
    Exhibit E.  Letter, AFBCMR, dated 9 Jul 07, w/atch.
    Exhibit F.  Letter, Applicant, undated.
    Exhibit G.  AFR 39-10 Extracts, dated 1 Oct 82.