RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-02050

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

He be granted early retirement. 

APPLICANT CONTENDS THAT:

He was in the Air Force for 19 years, seven months and two days.  He served enough time to warrant an early retirement.   

He knows of other service members who were within six months of their retirement and were granted early retirement.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 11 July 1966 and entered this period of active duty on 17 December 1981.       

On 27 June 1985, the applicant was notified by his commander that he was recommending he be discharged from the Air Force for misconduct and exceeding weight standards in accordance with AFR 39-10, Separation Upon Expiration Term of Service, for Convenience of the Government, Minority Dependency and Hardship.  The reasons for the recommendation include documented incidents of his failure to pay his debts to a financial services company and the Army and Air Force Exchange Service, delinquency in paying his rent and utilities, an Article 15 for failure to go to his place of duty, an Article 15 for failure to repay a loan, control roster action and Letters of Reprimand (LOR) for failure to make satisfactory progress in the weight management program and for failing to report to physical conditioning class.  The applicant was advised of his right to consult legal counsel, present his case to an administrative discharge board, be represented by legal counsel at a board hearing and submit statements in his own behalf or waive his rights.  

On 27 June 1985, the applicant acknowledged the discharge notification and that he understood his discharge could result in him receiving an under other than honorable conditions separation.    

On 28 June 1985, the applicant requested to present his case to an administrative discharge board, that he be represented by military counsel and submit statements in his own behalf.

On 19 July 1985, a discharge board was convened in accordance with AFR 39-10.  The board of officers recommended the applicant be discharged with a general discharge and that lengthy service probation and rehabilitation be denied.  The reasons for the recommendation include unsatisfactory performance by exceeding the weight standards of AFR 35-11, Air Force Weight and Fitness Programs, and misconduct by discreditable involvement with military or civil authorities as evidenced by letters of indebtedness and minor disciplinary actions.  The applicant received an Article 15 on 30 April 1985 for dishonorable failure to pay a debt.  He also received two Article 15 actions for problems with the weight management program.  It was noted the applicant failed to respond to any of the varied and extensive rehabilitation efforts his commanders employed for more than two years and he was still more than 30 pounds overweight.  The applicant’s attitude toward rehabilitation was demonstrated in his Article 15 for disobeying his commander’s order to attend remedial physical conditioning and soliciting others to lie for him and cover his absence.  Witnesses for both parties testified that the applicant’s flouting of Air Force standards had a significant negative effect on morale and discipline within the unit.  His continued presence was considered incompatible with maintaining good order and discipline in his unit and the Air Force.  

On 10 September 1985, the Staff Judge Advocate (SJA) found the discharge recommendation legally sufficient and recommended the applicant be discharged with a general discharge without suspension of the discharge.  

On 28 September 1985, the discharge authority approved the recommendation the applicant be discharged with a general discharge, without probation and rehabilitation.    

In an AF Form 1160, Military Retirement Action, dated 26 September 1985, the applicant requested voluntary retirement effective 1 August 1986 in lieu of discharge.    

On 8 November 1985, the Headquarters Pacific Air Forces (PACAF) SJA recommended the applicant be discharged with a general discharge, without probation and rehabilitation as recommended.  The letter states that despite the fact the applicant was within less than nine months of retirement eligibility, his record of continued misconduct and failure to respond to rehabilitative efforts warranted his separation under honorable conditions without probation and rehabilitation.  

In a letter dated 14 November 1985, the Deputy Chief of Staff for Personnel, Headquarters Pacific Air Forces (HQ PACAF/DP) stated the applicant’s discharge with a general discharge without probation and rehabilitation was warranted.  His weight problem and recurrent misconduct over an extended period dictated separation and not retirement.  Rehabilitative efforts in the case had been exhausted.  

The applicant was considered under dual action, lengthy service probation and retirement in lieu of AFR 39-10 discharge.  On 23 January 1986, the Secretary of the Air Force denied the applicant’s request for retirement and ordered the approved discharge be executed.  

On 12 February 1986, the applicant was discharged in the grade of Airman First Class (A1C, E-3) with a general (under honorable conditions) discharge and a narrative reason for separation of “Misconduct-pattern of discreditable involvement with military or civil authorities.”  He was credited with four years, one month and 26 days of active duty service this period.  He was also credited with 15 years, five months and six days of prior active duty service.   

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFPC/DPSOR-RET recommends denial.  Service requirements for retirement are outlined in Public Law.  For enlisted personnel, 10 U.S.C. § 8914 states under regulations to be prescribed by the Secretary of the Air Force, an enlisted member who has at least 20, but less than 30 years of service may upon request be retired.  There was no provision of law in effect at the time of the applicant’s discharge to allow retirement with less than 20 years of creditable service.   It appears the applicant may believe the “early separation/retirement” program of the 1980s would have applied to him; however, this program merely waived active duty service commitments to allow eligible personnel to retire before completing their service commitments.  The program did not waive the statutory requirements for airmen to complete 20 or more years of active duty. 

The Temporary Early Retirement Authority (TERA) was not enacted until the FY93 National Defense Authorization Act (NDAA), well after the applicant was discharged from active duty.  Since it was not in effect at the time of his discharge, that provision of law would not apply.  Additionally, even if TERA had been in existence at time of discharge, the policy would have excluded him from applying since he was involuntarily separated for misconduct.

A complete copy of the AFPC/DPSOR evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 12 November 2015 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

FINDINGS AND CONCLUSIONS OF THE BOARD:

Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2015-02050 in Executive Session on 3 May 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02050 was considered:

	Exhibit A.  DD Form 149, dated 14 May 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOR-RET, dated 23 October
  		  2015.
	Exhibit D.  Letter, AFBCMR, dated 12 November 2015.