RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05637 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) characterization of service be upgraded to at least general, under honorable conditions. ________________________________________________________________ APPLICANT CONTENDS THAT: His previous years of service from May 1982 through May 1986 were not taken into consideration during his final discharge in January 1990. In support of his request, the applicant indicated on the DD Form 149 that “documents are already filed,” however, there were no supporting documents submitted with his application. The applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: 1. According to documents extracted from his military personnel record the applicant initially enlisted in the Regular Air Force on 10 May 1982. 2. On 3 October 1989, the applicant was notified by his commander that he was recommending him for discharge from the Air Force under the provisions of AFR 39-10, paragraph 5-48, misconduct, (civilian conviction). The specific reason for the proposed action was evidence of misconduct substantiated by the applicant’s 1 July 1989 arrest for possession of cocaine which resulted in a finding of guilty and a sentence of three days confinement in the county jail. The notification letter also advised him of his right to: a. consult legal counsel. b. present his case to an administrative discharge board, c. be represented by legal counsel at a board hearing d. submit statements in his own behalf in addition to or in lieu of the board hearing e. waive the above rights, however he must consult counsel before making the decision to waive any of his rights. 3. On 3 October 1989, the applicant acknowledged receipt of the notification of discharge and that he understood approval of the recommendation for his discharge could result in his receiving an other than honorable conditions separation. He also acknowledged that military legal counsel was available to assist him. On 4 October 1989, after consultation with military legal counsel, the applicant submitted a written statement offering a conditional waiver of his rights associated with an administrative discharge board hearing. The waiver was contingent upon his receipt of no less than a general discharge if the recommendation for discharge was approved. He acknowledged that he understood that if the convening authority or the separation authority rejected the waiver, the processing of his case would continue according to AFR 39-10. He elected not to submit statement in his behalf. 4. On 31 October 1989, after legal review, the applicant’s commander rejected his offer of the conditional waiver. The applicant was instructed to either submit an unconditional waiver or demand a board hearing within three duty days or he would be scheduled for a board hearing. On 31 October 1989, the applicant acknowledged receipt of the rejection of his unconditional waiver but did not indicate whether he would submit an unconditional waiver or demand a board hearing. 5. On 28 November 1989, a board hearing was convened. The board of officers recommended the applicant be separated with an under other than honorable conditions discharge, without probation and rehabilitation. Subsequent to the file being found legally sufficient, the discharge authority approved the request for discharge and directed the applicant be discharged with an under other than honorable conditions characterization of service. The applicant was released from active duty on 9 January 1990, and credited with 7 years, 7 months and 6 days of active duty service. 6. On 29 August 2013, the applicant was given an opportunity to submit comments regarding his post service activities (Exhibit C). To date, a response has not been received. ________________________________________________________________ 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 evidence of an error or injustice that occurred during the discharge process. Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority. The applicant has provided no evidence, which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, or unduly harsh. In the interest of justice, we considered upgrading the discharge based on clemency; however, there was no evidence submitted to compel us to recommend granting the relief sought on that basis. Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought in this application. 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 issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered this application in Executive Session on 15 October 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-05637 was considered: Exhibit A. DD Form 149 dated 28 November 2012. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFBCMR, dated 29 August 2013.