RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03359

						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to General (Under Honorable Conditions).  

APPLICANT CONTENDS THAT:

He was found guilty and discharged for substance abuse.  Specifically, he failed a screened urine test and was arrested for possession of marijuana.  However, he was never offered any form of substance abuse treatment for drugs or alcohol, in order for him to adjust his behavior.  He should not have been considered for a court-martial, leading to an UOTHC discharge, since he was not offered treatment for his illness.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 15 June 1981.  

On 17 March 1982, the applicant’s commander notified him that he was recommending his discharge from the Air Force for his frequent involvement of a discreditable nature with civil and military authorities.  The commander recommended an UOTHC discharge, which qualified the applicant for a hearing before an administrative discharge board.  The reasons for the action included the following:  

	a)  On 8 October 1981, the applicant received non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for possession of marijuana, in violation of Article 134, UCMJ.  His commander imposed punishment consisting of reduction to the grade of airman (E-2), forfeitures of $200 pay per month for two months, and a suspended reduction to the grade of airman basic (E-1) until 1 April 1982, at which time, unless vacated, would be remitted without further action.  
 	b)  On 25 November 1981, an AF Form 366, Record of Proceedings of Vacation of Suspended Non-judicial Punishment, was initiated to vacate the applicant’s suspended portion of his NJP action due to him unlawfully striking an airman in the face with a closed fist, in violation of Article 128, UCMJ.  

	c)  On 3 March 1982, the applicant received NJP under Article 15 of the UCMJ for willfully damaging military property, by poking holes in the ceiling of a dayroom, in violation of Article 108.  His commander imposed punishment consisting of a forfeiture of $50.00 pay per month for two months, correctional custody (CC) for a period of seven days, and 14 days extra duty.  

	d)  On 17 March 1982, the applicant received NJP under Article 15 of the UCMJ for willfully and wrongfully damaging civilian property, by cutting a towel rack and pool table, in violation of Article 109.  His commander imposed punishment consisting of CC for a period of 15 days.  

On 17 March 1982, the applicant acknowledged receipt of the action and that legal counsel was made available to assist him.  

On 19 March 1982, the applicant submitted a conditional waiver of his board entitlement, contingent upon receipt of a general discharge.  However, his request was denied by the special courts-martial convening authority.  

On 2 April 1982, the applicant submitted a request for a hearing before an administrative discharge board.  

On 8 June 1982, appointed officers of an administrative discharge board convened and recommended the applicant be separated with an UOTHC discharge and that he should not be offered probation and rehabilitation (P&R).  No rehabilitation was recommended due to the applicant’s failure to respond to previous attempts of rehabilitation. 

On 22 June 1982, the separation authority directed the applicant be furnished an UOTHC discharge without P&R.  

On 15 July 1982, the applicant was furnished a under other than honorable conditions discharge, with a narrative reason for separation of “Misconduct – Frequent Involvement of a Discreditable Nature”, issued a separation code of “GKA” (discreditable incidents – civilian or military), and reenlistment (RE) code of “2B” (discharged under general or other-than-honorable conditions).  He was credited with one year, one month, and one day of active service.  

On 18 June 2002, the applicant initiated a DD Form 293, Application for the Review of Discharge or Dismissal From The Armed Forces of the United States, requesting his UOTHC discharge be upgraded to an honorable or general (under honorable conditions) discharge.  
His DD Form 293 was returned without action since his discharge was over 15 years old.  

On 9 March 2016, a request for post-service information was forwarded to the applicant for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).

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

AIR FORCE EVALUATION:

AFPC/DP2STM recommends denial.  Based on the documentation on file in the applicant’s 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. 
The discharge board determined that the applicant was given numerous opportunities to correct his behavior.  The board indicated that the applicant brought marijuana into Germany when he arrived for duty and that since being punished for that incident, he received three additional non-judicial punishment (NJP) actions and a “6” rating on his airman performance report (APR), with a history of aggressive behavior.  The board concluded that the evidence clearly showed that his failure to respond to the rehabilitative efforts afforded him a poor prognosis for continued service.  Therefore, discharge action was recommended and initiated by his commander.  As such, the basis for discharge existed at the time and both the narrative reason for separation and SPD code are correct as indicated.  

The base separation authority determined that the applicant should receive an under other than honorable conditions (UOTHC) discharge service characterization.  This determination was based on the types and frequency of the misconduct involved.  Therefore, the service characterization is correct and in accordance with Department of Defense (DoD) and Air Force instructions.

It has been almost 34 years since the applicant’s discharge and he did not provide a valid reason for not filing a timelier application.  However, due to the excessive length of time, the board could consider granting the applicant’s request based on clemency.  

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

AFLOA/JAJM found no apparent error or injustice which undermines the nonjudicial punishment or vacation actions that formed the basis for the applicant’s discharge from the Air Force.  Barring any evidence that the applicant’s chain of command failed to comply with service regulations pertaining to substance abuse counseling, there is no new evidence which may have altered the findings and recommendations of the applicant’s discharge board.  

The applicant erroneously states that he was court-martialed for his misconduct.  There is no record of trial by court-martial in his personnel records.  He further implies that substance abuse formed the basis of his administrative separation, whereas the actual basis cited was “misconduct (frequent involvement with civil or military authorities in matters of a discreditable nature).”  Specifically,  the applicant accumulated three Article 15s and one vacation action for drug possession, damaging private property, damaging government property, an assaulting another Airman, during the period of 30 October 1981 to 22 March 1982, respectively.  As a result of the misconduct, on 17 March 1982, the applicant’s commander recommended that he be separated administratively under other than honorable conditions, pursuant to Air Force Manual (AFM) 39-12.  The applicant acknowledged his right to consult with counsel, to submit matters on his own behalf, and to present his case before an administrative discharge board.

The applicant consulted with military defense counsel and submitted a waiver of administrative discharge proceedings, conditioned upon receipt of a general service characterization.  The conditional board waiver was rejected by the applicant’s wing commander.  The applicant then elected to present his case, along with his defense counsel, to an administrative discharge board.  The board convened at Sembach Air Base, Germany on 11 May 1982.  The board concluded that the applicant had been involved with civil or military authorities in matters of a discreditable nature, as evidenced by his Article 15s for marijuana possession in October ‘81, willful damage to military property in March ‘82, willful damage to private property in March ‘82, and a vacation of suspended Article 15 punishment (reduction in grade below E-2) for assaulting a fellow Airman in November ‘81.  The board also concluded that the applicant met the basis for a misconduct discharge and recommended that he be separated under other than honorable conditions, without the possibility of probation and rehabilitation.  

It is noteworthy that the applicant did not raise the issue of substance abuse counseling during his administrative discharge board.  In fact, when asked if he had an issue with alcohol abuse at the discharge board, the applicant indicated that he had gotten his alcohol problem under control.  At best, any failure of the applicant’s chain of command to refer him for substance abuse counseling would be evidence in mitigation at his discharge board.  It would not affect whether the applicant met the basis for separation.  It may have influenced a decision with regard to service characterization, but again, the applicant did not raise the issue then, and affirmatively declared that he did not have a substance abuse problem by the time his discharge board convened in May ‘82.
The sole issue raised by applicant that falls within the purview of this office is the legal sufficiency of the non-judicial punishment and vacation actions served upon him.  The applicant does not allege any error or injustice regarding these actions in his application for relief to the AFBCMR.  During the applicant’s administrative discharge board, he confirmed to the board members that the NJP actions served upon him were fair.  He did take issue with the vacation action, stating that he was acting in self-defense when he struck another Airman.  However, the record indicates that the applicant submitted matters for the commander’s consideration at the time of the vacation action, but was unsuccessful in convincing the commander that his actions were justified.  In addition, the requisite legal review of the vacation action was performed, as is evident on the AF Form 366, Record of Proceedings of Vacation of Suspended Non-Judicial Punishment, and its attachments, located in the applicant’s personnel records.  The applicant does not raise any new evidence or allegation of injustice which tends to cast doubt on the findings of his commander during NJP or vacation action proceedings.  Any failure to refer the applicant for substance abuse counseling would not negate any of the elements of the crimes for which he was found guilty via NJP.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant’s counsel on 1 April 2016 for review and comment within 30 days (Exhibit F).  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.  While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application.  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-2015-03359 in Executive Session on 9 August 2016 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 30 July 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2STM, dated 3 March 2016.
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 3 March 2016.
	Exhibit E.  Letter, AFBCMR, dated 9 March 2016, w/atch.
	Exhibit F.  Letter, AFBCMR, dated 1 April 2016.  

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 that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.