RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-01140 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: His discharge be upgraded to honorable and he receive all back- pay from his discharge date to what would have been his retirement date. If not approved, he requests he receive 19 months of basic pay, Basic Allowance for Housing/Basic Allowance for Quarters (BAH/BAQ) and Basic Allowance for Subsistence (BAS). APPLICANT CONTENDS THAT: When he was separated for misconduct, his rights were violated under AFI 36-3208, Administrative Separation of Airmen, paragraphs 6.8.3 and 6.8.4 because he was never given the opportunity to consult counsel, submit a rebuttal on his own behalf, or speak to his commander under the commander’s open door policy. After speaking with a friend about his career, he discovered he should have had the right to consult counsel and submit a rebuttal before he was discharged, because he had never received a civil conviction, court-martial, formal reprimand or non- judicial punishment. The applicant’s complete submission is at Exhibit A. STATEMENT OF FACTS: On 15 Oct 92, the applicant entered the Regular Air Force. On 29 Jun 94, he received a Referral Enlisted Performance Report (EPR) for his failure to maintain standards of the Air Force Weight Management Program. He acknowledged receipt the same day. On 13 Jun 94, he received a Letter of Reprimand (LOR) for a second unsatisfactory body fat measurement. His commander established an Unfavorable Information File (UIF) as a result of the LOR. He acknowledged receipt the same day. On 30 Nov 94, according to AF Form 2098, Duty Status Change, the applicant was returned to his Air Force Base from County Jail pending arraignment on 15 Dec 94. On 21 Feb 95, he was notified his commander was recommending him for discharge under the provisions of AFPD 36-32, Military Retirements and Separations, and AFI 36-3208, paragraph 5.50.1 for a pattern of Misconduct. He consulted legal counsel and waived his right to submit statements. On 24 Feb 95, the discharge authority upheld the general discharge without probation or rehabilitation. In an undated memorandum, The Staff Judge Advocate found the discharge legally sufficient. On 28 Feb 95, the applicant received a general, under honorable conditions discharge and was with 2 years, 4 months and 16 days of active service. On 1 Jun 15, a request for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit C). As of this date, no response has been received by this office. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice. Based on the documentation on file in the master personnel records, the discharge to include the Separation Program Designator (SPD) code, narrative reason for separation and character of service was appropriately administered and within the discretion of the discharge authority. In addition, the applicant did not file a timely petition. It has been 20 years since the applicant’s discharge and he did not submit a valid reason for not filing a petition within three years of discharge. The applicant claims that he was never given an opportunity to speak with a lawyer or to submit statements in his own behalf. A review of the documentation contained in his record shows that the applicant signed a letter indicating that military legal counsel was made available to him and that he had consulted with counsel. He also indicated he elected to waive his right to submit statements. He further contends he was never given an LOR. A review of the applicant’s record shows he received 2 LORs during his career and a UIF was established. His commander indicated two acts of misconduct warranted the general discharge. The discharge authority concluded he deserved a general discharge as well and concluded the negative aspects of his conduct outweighed any positive aspects in his career. A complete copy of the AFPC/DPSOR evaluation is at Exhibit D. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed. While the applicant claims a date of discovery of less than three years ago, in our view, the reasonable date of discovery of the alleged error or injustice was more than three years ago and the application is therefore untimely; 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 an 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 in the discharge processing. 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 SPD code, narrative reason for separation and characterization of the service were contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. In the interest of justice, we considered upgrading the discharge based on clemency; however, in the absence of any evidence related to the applicant’s post- service activities, there is no way for us to determine if the applicant’s accomplishments since leaving the service are sufficiently meritorious to overcome the misconduct for which he was discharged. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-01140 was considered: Exhibit A. DD Form 149, dated 20 Mar 15. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, Clemency Bulletin, dated 1 Jun 15. Exhibit C. Memorandum, AFPC/DPSOR, dated 14 Jul 15. Exhibit D. Letter, SAF/MRBR, dated 14 Sep 15.