RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-05026

   						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His reenlistment eligibility (RE) code of 6H (Pending discharge – Involuntary) on his NGB Form 22, Report of Separation and Record of Service, be changed to an RE code which will allow him to reenlist. 

APPLICANT CONTENDS THAT:

He was discharged due to a civilian case in which he was found not guilty.  That is why the RE code was set to “pending.”  Now that the case is over, he should be able to reenlist. 

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

STATEMENT OF FACTS:

The applicant initially entered the Indiana National Guard on 17 Feb 09.

On 4 Feb 15, the applicant was furnished a General (Under Honorable Conditions) discharge, with a reason for discharge of “Misconduct-civilian conviction,” an RE code of “6H,” and was credited with 5 years, 11 months, and 19 days of active service.   

According to the documentation provided by the applicant, on 12 Sept 15, he was tried in a civilian court on the charges of criminal confinement where a vehicle is used, strangulation, and domestic battery committed in the presence of a child less than 16 years of age, and was found not guilty on all three charges. 

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:

NGB/A1PP recommends denial indicating there is no evidence of an error or an injustice.  The Uniform Code of Military Justice (UCMJ) authorizes a punitive discharge under UCMJ Article 109 for “property other than military property of the United States – waste, spoilage, or destruction.”  In Jun 13, the applicant was convicted of Criminal Mischief, for willful and wrongful destruction of another person’s property.  The Staff Judge Advocate (SJA) stated the “conviction qualifies under AFI 36-2909, 3.21.4.3. as ‘tantamount to a finding of guilty.’  The possible punishment for this crime could be a Dishonorable discharge, forfeiture of all pay and allowances, and confinement of 5 years.”  The Staff Judge Advocate goes on to state:  “the 2014 charges of Confinement, Strangulation, and Domestic Battery in the presence of a Child, are showing a pattern of misconduct as defined in AFI 36-3209, para 3.21.2.  All of which are felony criminal acts for which the member could have been charged under the UCMJ or state military code.”  Based on the contents of the discharge package, applicant was discharged for “a pattern of misconduct.”  The reason for discharge reflected on the applicant’s NGB 22 is correct for a finding of “pattern of misconduct.”  

While the applicant is correct the reason for discharge associated with his RE code states the discharge is “pending,” this is the most accurate RE code for a member being discharged for a “pattern of misconduct.”  The applicant’s Force Support Squadron used the most appropriate RE code for the reason of separation.  The reason for separation and RE code on applicant’s NGB Form 22 were within the guidelines set forth within the AFI and applicant failed to show that it was an error or injustice.

A complete copy of the NGB/A1PP evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his original request, the applicant submitted a rebuttal to the Air Force evaluation in which he submits a personal statement describing the circumstances surrounding his arrest, court appearance, and findings of not guilty.  In addition, he submitted the case summary of his trial for Board review.  (Exhibit E) 

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

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 agree with the opinion and recommendation of NGB/A1PP and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the Board acknowledges the applicant’s contention that after his date of separation he was ultimately found not guilty in a civil court, the applicant’s commander had the full authority to direct his discharge based upon the information available to the commander at the time.  Therefore, the applicant’s RE code was accurate as of the date his NGB Form 22 was issued, and in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 members of the Board considered AFBCMR Docket Number BC-2015-05026 in Executive Session on 24 Jan 17 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-05026 was considered:

	Exhibit A.  DD Form 149, dated 24 Nov 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, NGB/A1PP, dated 23 May 16, w/atchs.
	Exhibit D.  Letter, SAF/MRBR, dated 15 Jun 16.
Exhibit E.  Letter, Applicant, dated 5 Aug 16, w/atchs.

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.