RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03045

   						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS:

1.  His General (Under Honorable Conditions) discharge be upgrade to Honorable.

2.  The narrative reason for discharge on DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to an appropriate reason.  

3.  His reentry (RE) code be changed to a more appropriate reason for discharge.  

4.  His Letter of Reprimand (LOR), Unfavorable Information File (UIF), Control Roster (CR) action, and referral Enlisted Performance Report (EPR) covering the period 30 Mar 93 through 24 Jan 94, be declared void and be removed from his record.  

5.  His discharge date on his DD Form 214, Certificate of Release or Discharge from Active Duty, be changed to 9 Nov 97 to reflect completion of the 2nd term of service which he was unjustly prevented from completing.  

APPLICANT CONTENDS:

He was unjustly discharged for minor disciplinary actions because the Air Force failed to follow its own guidance.

1.  General discharge. The Air Force failed to follow          AFI 36-208(Sic), Administrative Separation of Airmen, when determining the basis for his discharge.  The Air Force used his full military record instead of his current enlistment or period of service.  On 9 Nov 93, he was discharged honorably for immediate reenlistment, and he reenlisted on 10 Nov 93.  However, his commander incorrectly used items from his previous enlistment as evidence to support his administrative separation as if he was still a first term airman.  The government’s evidence for discharge should have been limited to the two LORs he received during his current enlistment.  In addition, the Air Force did not follow the procedures for involuntary discharge.  His discharge action was not a mandatory discharge.  His commander failed to explain why the circumstances that led to the discharge did not warrant consideration of demotions, punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), change in duty assignment, demotion, additional training or duty, or other administrative action.  Finally, he was not given an opportunity to overcome deficiencies prior to the decision to discharge him. 

2.  Characterization of service. The Air Force failed to follow AFI 36-208(Sic), Administrative Separation of Airmen, when determining his characterization of service.  The Air Force based his characterization of service on his full military record instead of his current enlistment or period of service.  

3.  LOR, UIF and Control Roster.  The Air Force did not follow AFI 36-2907, Unfavorable Information File (UIF) Program, when administering his LOR.  The LOR did not contain specific procedural requirements.  He was not given a chance to overcome the deficiencies of his LOR, dated 18 Jan 94, nor allowed to overcome his deficiencies during the time required to complete his control roster period.  He should have been allowed six months of observation under the control roster action prior to his commander initiating discharge actions.  The LOR was improperly written by a third party with no direct knowledge of the events addressed.  The UIF and Control Roster action were the result of the LOR which does not meet procedural requirements.  

4.  Referral EPR.  The Air Force did not follow AFI 36-2406, Officer and Enlisted Evaluation Systems, when completing his referral EPR.  The Air Force failed to ensure the EPR was completed by the proper suspense date.  There was roughly 60 days from the close out of the EPR and date of the EPR.  The EPR does not include the statement, “I have carefully considered (ratee’s name) comments to the referral document of (date).”  The rater and endorser both made prohibited and inappropriate comments by being non-specific and vague.  He was never given the opportunity to acknowledge receipt for the referral EPR prior to it becoming a matter of record.  The EPR was written to reflect the LOR, dated 18 Jan 94, more than to evaluate the entire reporting period, and was completed as a result of the Control Roster action.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 2 Jul 90.

On 8 Apr 92, the applicant received a referral EPR covering the period 2 Jul 90 through 29 Mar 92, on which he received a Promotion Recommendation of “2—Not recommended for promotion at this time,” and which contained references to needed improvements in attitude, maturity, and respect for authority.  

On 9 Nov 93, the applicant was furnished an Honorable discharge, but was approved for immediate reenlistment. 

On 10 Nov 93, the applicant reenlisted into the Regular Air Force. 

On 11 Apr 94, the applicant received a referral EPR covering the period 30 Mar 93 through 24 Jan 94, in which he received a Promotion Recommendation of “2--Not Recommended at this time,” and which contained multiple references to failure to perform his duty, negligence, and conduct not commensurate with his rank. 

On 28 Apr 94, the applicant’s commander notified him he was recommending him for discharge for misconduct--minor disciplinary infractions.  The reasons for taking this action were: 

	1.  On or about 24 Oct 91, the applicant failed to go at the time prescribed to his appointed place of duty.  For this he received verbal counseling.  

	2.  On or about 8 Nov 91, the applicant was delinquent on his club account and displayed a lack of self-motivation.  For this he received verbal counseling.  

3.  On or about 3 Jan 92, the applicant failed to go at the time prescribed to his appointed place of duty.  For this he received verbal counseling.

4.  On or about 19 Feb 92 and 20 Feb 92, the applicant was derelict in the performance of his duties in that he failed to assist another airman when instructed to do so.  For this he received verbal counseling.

5.  On or about 12 Oct 93, the applicant failed to go at the time prescribed to his appointed place of duty.  For this a Memo for the Record (MFR) documented his behavior. 

6.  On or about 2 Dec 93 and 7 Jan 94, the applicant failed to comply with AFR 35-10, Dress and Appearance, in that he needed a haircut; failed to perform his duties in a proper manner; and, was disrespectful towards two noncommissioned officers.  For this he received a Letter of Reprimand (LOR), an Unfavorable Information File (UIF) was established, and he was placed on the Control Roster (CR).

7.  On or about 21 Mar 94, the applicant issued checks to the Exchange Service, totaling $108.90, which were returned due to insufficient funds.  For this he received verbal counseling, an LOR, and was enrolled in the Personal Financial Management Program. 

On 4 May 94, the applicant’s commander recommended him for a General (Under Honorable Conditions) discharge for misconduct—minor disciplinary infractions.  The applicant acknowledged receipt of the separation action and was afforded the opportunity to consult with legal counsel and submit statements in his own behalf.  The legal office reviewed the package and found it legally sufficient. 

On 10 May 94, the discharge authority directed the applicant be separated with a General (Under Honorable Conditions) service characterization, without probation or rehabilitation.   

On 20 May 94, the applicant was furnished an General (Under Honorable Conditions) discharge, with an RE code of 2B, a narrative reason for separation of “Misconduct,” and was credited with 3 years, 10 months, and 19 days of active service.   

In Feb 02, the applicant applied to the Air Force Discharge Review Board (DRB) requesting his General discharge be upgraded to Honorable.  The DRB denied the applicant’s request, concluding the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  The Board found no evidence of any inequity or impropriety on which to base a decision to upgrade the discharge.  

On 16 Aug 16, the AFBCMR forwarded a request for post-service information to the applicant for review and comment within 30 days.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C, D, E, F, and G.    

AIR FORCE EVALUATIONS:

AFPC/DP2SSM recommends denial of the applicant’s request to remove his LOR, UIF, and CR action from his record, indicating there is no evidence of an error or an injustice.  AFR 35-32, Air Force Unfavorable Information File Program, dated 11 May 90, states:

	1.  “Commanders and supervisors at all levels are responsible for ensuring subordinates adhere to established military standards.  Unacceptable deviations should be identified as early as possible to the member in the form of a record of counseling, oral reprimand, written letter of reprimand (LOR), or letter of admonition (LOA).”

2.  “…The UIF may document a variety of administrative, judicial, or nonjudicial censures concerning the member’s performance, responsibility, behavior, etc,” and “Before a UIF is established, the commander refers the intended UIF document to the member.  The member is allowed 3 workdays to acknowledge and provide pertinent information before the commander completes the action.  If the decision is to file the document in a UIF, any statement or document provided with the member’s reply becomes part of the documentation and is filed in the UIF.  The member is advised on the commander’s decision.” 

3.  “The purpose of the control roster is to observe and monitor members who have demonstrated substandard duty performance or failed to meet or maintain Air Force standards of conduct, bearing, behavior, integrity, etc., on or off duty, or both.  Individuals placed on the control roster have demonstrated a need for special attention, observation, evaluation, and rehabilitation.”

The evidence presented indicates the documents in question were completed properly and the correct procedures were followed to administer the LOR, dated 18 Jan 94, and the Control Roster action, dated 24 Jan 94.  There was no evidence to support that the applicant was treated unjustly.  Recommend denying relief to remove the LOR, dated 18 Jan 94, and UIF/Control Roster action due to lack of supporting evidence regarding unjust establishment of the UIF.  

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit C.

AFPC/DPSID recommends denial of the applicant’s request to declare his referral EPR void and remove it from his record, indicating there is no evidence of an error or an injustice.  The applicant contends his EPR does not contain requirements set forth in  AFI 36-2406, Officer and Enlisted Evaluation System, specifically, the comments in the report are vague.  In addition, he contends his EPR was conducted as a result of being placed on a Control Roster and was written to reflect the LOR, dated 18 Jan 94, more than evaluating the entire rating period.  However, the evaluators make absolutely no mention of the CR or LOR in the EPR, but mention the applicant's substandard performance during the rating period.  The applicant provided no substantial evidence which indicates the evaluators of the contested reports wrote an unfair or impartial EPR.  The applicant was given the opportunity to rebut the administrative actions as well as the referral report itself and declined to do so.  Air Force policy is that an evaluation report is accurate as written when it becomes a matter of record.  It is considered to represent the rating chain's best judgment at the time it is rendered.  The applicant has not substantiated the contested report was inaccurate at that time.  Finally, the applicant unreasonably and inexcusably waited 22 years to file this appeal and offered no justification for the extensive delay.  Recommend denying the applicant’s request.  

A complete copy of the AFPC/DPSID evaluation is at Exhibit D.

AFPC/DP2STM recommends denial of the applicant’s request to change his character of service from General to Honorable, indicating there is no evidence of an error or an injustice.  The applicant contends his separation date should be changed to 9 Nov 97 to reflect the completion of the term of service he couldn’t complete based on the discharge he considers unjust.  AFR 39-10 states a general discharge service characterization is warranted when “the airman’s service has been honest and faithful but significant negative aspects of the airman’s conduct or performance of duty outweigh the positive aspects of the airman’s military record.”  The applicant committed numerous acts of misconduct and was given ample opportunity to correct his behavior, which met with no success.  The commander presented ample evidence to the discharge authority to support administrative discharge.  The base discharge authority approved the discharge and directing the involuntary separation was within his authority.  The discharge was not unjust.  Furthermore, the applicant has not filed a timely petition.  It has been almost 22 years since the applicant’s discharge.  

A complete copy of the AFPC/DP2STM evaluation is at Exhibit E.

AFPC/DPSOA recommends denial of the applicant’s request to change his RE code, indicating there is no evidence of an error or an injustice.  On 10 May 94, the 18 WG/CC directed the applicant be discharged with a General character of service.  In accordance with AFR 39-10, Administrative Separation of Airmen, based upon his involuntary discharge with a General character of service, his RE code of 2B is required.  Unless the Board votes to change the applicant’s type of discharge, his current RE code is correct.  

A complete copy of the AFPC/DPSOA evaluation is at Exhibit F.

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice.  Statutes of limitations are enacted in recognition that with the passage of time evidence is lost and destroyed; memories fade; and at some point in time, an ordered society has an interest in attaching finality to past events.  To prevent the application of the statutes of limitations, an applicant must either show the Air Force has concealed its acts with the result the applicant was unaware of their existence or the applicant must show the basis for a claims was “inherently unknowable” at the accrual date.  The applicant failed to prove he exercised the requisite due diligence in pursuing his claims at the appropriate time.  In addition, laches is a doctrine where relief can be denied to a person who has unreasonably and without excuse delayed in asserting his claim.  For laches to apply, two things are required (1) inexcusable delay and (2) prejudice or hardship to the Air Force.  The applicant in this case unreasonably and without excuse delayed for more than two decades in asserting his claim.  Further, he already disputed his discharge with the Air Force’s Discharge Review Board (DRB) in 2002.  His application for relief submitted to the DRB shows he was clearly aware of the circumstances and perceived error or injustice at that time, 14 years ago.  Over the past 20 years, the individuals involved in processing the applicant case are either unavailable, having long since retired from the Air Force, or their memories and relevant notes, documents, etc., on these events have faded.  It would be almost impossible to obtain witnesses to these events and substantiate the allegations and rebuttals the applicant puts forth.  Even if the Board were somewhat persuaded by the applicant’s arguments, laches applies in this case and should bar the applicant’s claim.  

Concerning the applicant’s argument his LOR, EPR, and discharge are all flawed, he makes the following points: his LOR fails to articulate what improved conduct was expected of him; his EPR was not completed until a couple of months after the close out date; and from the face of the discharge documents, it appears misconduct from both of his enlistments, rather than the current enlistment, were considered for a basis for his discharge and service characterization.  He asserts that “this discharge action would not have been approved if the Commander had followed the Air Force Instruction in relation to the characterization of service, the basis of discharge, and preprocessing rehabilitation.”  However, in this regard, the applicant is engaging in speculation.  The applicant’s second, or current, enlistment included a series of infractions which would have been sufficient to establish a basis of discharge.  In fact, his multiple infractions provide a sufficient basis to characterize his service as “General.”  There is no injustice established that would serve as a basis to waive the statute of limitations.  The Board would be justified in denying this application as untimely and also based on the doctrine of laches.  

A complete copy of the AFPC/JA evaluation is at Exhibit G.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In further support of his request, the applicant submitted a rebuttal to the Air Force advisories in which he takes exception to most of the advisories recommendations.  First, he acknowledges he does not have an excuse for his untimely request.  His request is to obtain a sense of closure, to find out if the Air Force truly erred when they discharged him, and for the possibility of using his talents in the AF Reserve or the Air National Guard.  He has worked as a civil servant for almost 16 years.  Concerning the DPSOA recommendation to deny his request to change his RE code, he is only seeking said change if the Board grants his request for an honorable discharge.  Concerning the DP2SSM recommendation to deny his request to remove his LOR, UIF, and Control Roster, he did not dispute the UIF or Control Roster, only the LOR.  He reiterates that the LOR failed to meet the AFI requirement of stating what improvement was expected.  It was written to punish.  At the time, he declined to comment on the LOR because it covered actions which happened between 11 and 47 days prior to his receiving the LOR.  Concerning the DPSID recommendation to deny voiding his referral EPR, he believes he cited numerous examples of where the Air Force failed to follow the AFI guidance while issuing the report.  By not notifying him the EPR was a matter of record, the Air Force used the EPR as evidence when considering his discharge without first allowing him to exhaust all avenues to contest through the established channels.  Concerning the DP2STM recommendation to deny his request to upgrade his discharge to Honorable, he has shown where the Air Force did not follow the AFI.  The advisory does not give evidence to refute his claims.  He is proud of the fact he has had a good career with the Air Force.  His military record is not a fair accounting of who he is. 

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 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:

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-2015-03045 in Executive Session on 20 Oct 16 under the provisions of AFI 36-2603:

Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03045 was considered:

	Exhibit A.  DD Form 149, dated 11 Jul 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2SSM, dated 5 Apr 16.
	Exhibit D.  Memorandum, AFPC/DPSID, dated 16 May 16.
	Exhibit E.  Memorandum, AFPC/DP2STM, dated 18 May 16.
	Exhibit F.  Memorandum, AFPC/DPSOA, dated 7 Jun 16.
	Exhibit G.  Memorandum, AFPC/JA, dated 28 Jun 16.
	Exhibit H.  Letter, SAF/MRBR, dated 5 Jul 16.
	Exhibit I.  Letter, Applicant, dated 31 Jul 16.
	Exhibit J.  Letter, AFBCMR, dated 16 Aug 16, w/atch. 

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.