RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02375
		INDEX NUMBER:  110.00
	XXXXXXX	COUNSEL:  None

	XXXXXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The narrative reason for his discharge from the Air Force be changed from “Misconduct” to “Convenience of the Government.”

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APPLICANT CONTENDS THAT:

The Discharge Review Board (DRB) in considering the same request above ignored pertinent facts presented by him and his representatives (Congressman and father).

The DRB admitted the Air Force counsel who represented him at the time of his discharge and personnel in the Education Office committed numerous errors.  The DRB ignored the impact these errors had on his case.  They also ignored that he erroneously paid an additional $600.00 for additional Montgomery GI Bill (MGIB) benefits, which has not been returned.

The DRB incorrectly applied burden of proof on the charges filed against him rather than addressing and basing their ruling on the issues of propriety and equity supported by his incompetent Air Force counsel and the advice he received from personnel in the Education Office.

His request should be concluded in his favor based on the statements made at the DRB hearing by their legal counsel confirming he was given incorrect advice by his AF counsel and the reiteration by his representative (Congressman) that based on Air Force rules, the incorrect advice he was given should conclude his case in his favor.

In support of his appeal, applicant provides a prepared statement and a copy of the DRB decisional rationale.

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

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 18 Nov 98.  On 7 May 01, his squadron commander notified him he was recommending his discharge from the Air Force for misconduct, specifically drug abuse.  The reason for the commander’s action was the applicant’s voluntary admission to a mental health provider he had used cocaine in Jan 01.  As a result of his disclosure, the applicant received a letter of reprimand (LOR).  In the letter of notification, the applicant was advised of his right to counsel and to submit statements in his behalf.  The applicant acknowledged receipt on 7 May 01, consulted counsel and waived his right to submit statements.  On 15 May 01, the squadron commander recommended to the wing commander the applicant be discharged for the reason stated above.  The wing Staff Judge Advocate reviewed the applicant’s discharge file and found it legally sufficient to support his discharge.  They recommended the wing commander recommend to the discharge authority the applicant be discharged with an honorable service characterization, without probation and rehabilitation.  The wing commander accepted their recommendation and recommended to the discharge authority the applicant be discharged from the Air Force.  On 22 May 01, the discharge authority directed the applicant’s discharge with an honorable discharge without probation and rehabilitation.  The applicant was discharged on  24 May 01 with two years, six months, and five days of active service.

On 18 Oct 02, the applicant applied to the DRB for change of the reason for his discharge from misconduct to convenience of the government.  The applicant declined the offer of a personal appearance.  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.  On 27 Aug 03, the applicant requested a second review by the DRB, with a personal appearance.  The DRB considered the applicant’s case on 27 Jan 04.  The applicant was represented by his father and his Congressman.  The DRB again concluded the applicant’s discharge was proper and denied his request.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends the applicant’s request be denied.  Based on the documentation in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The Air Force DRB previously reviewed all the evidence of record and also reached this conclusion.  They further concluded there exists no legal or equitable basis for changing the narrative reason for his separation from “misconduct” to “convenience of the government.”

The complete evaluation is at Exhibit C.

AFPC/JA recommends the applicant’s request be denied.  The sole issue for the Board in this case is whether the applicant was properly discharged from the Air Force for misconduct.  The applicant’s interest in this issue is obvious:  He qualifies for MGIB benefits only if he has completed 30 months of active service, was discharged for “convenience of the government,” and received an honorable characterization.  No evidence exists that substantiates the applicant’s claims he was told his discharge would be for “convenience of the government.”  From the inception of this administrative discharge action, the documentation clearly specifies he was being separated for “misconduct.”  In particular, the applicant acknowledged receipt of his commander’s notification of intent to recommend discharge for “misconduct, specifically drug abuse” on 7 May 01.  After consulting with his counsel, the applicant responded to his commander’s notification stating:  “I have been notified that you are recommending me for discharge for misconduct, specifically drug abuse….”  He also elected not to contest the discharge and waived his right to submit statements with that response.

The only appropriate basis for this discharge is misconduct.  Airmen “found to have abused drugs will be discharged unless the member meets all seven” of the so-called retention criteria.  Further, the “burden of proving that retention is warranted under these limited circumstances rests with the member.”  As previously stated, the applicant did not contest the drug abuse allegation and offered no evidence his retention in the Air Force was appropriate.

Because a precise basis for discharge exists for the applicant’s misconduct, discharge for “convenience of the government” would be unauthorized.  Discharge for “convenience of the government” is appropriate when discharge would serve the best interests of the Air Force and discharge for cause is not warranted.  Based on the applicant’s admission of using cocaine, his commander properly initiated discharge action for misconduct.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluations, the applicant states the only reason he finds himself in the situation he is in, after self-identifying, is because as a lowly airman, he trusted, listened and followed the legal advice provided by two Air Force professionals, his counsel and a representative from the Base Education Office.  He would have never signed his DD Form 214 if he had known that he had not received correct, competent, and factual advice.  He urges the Board to inspect and review all of the documentation he has provided, especially the cassette tape made of his DRB hearing in deciding his case.  
The applicant’s complete submission is at Exhibit F.

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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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the primary basis for our conclusion the applicant has not been the victim of an error or injustice.  We note the applicant’s assertion that the only reason he finds himself in the situation he is in is because he “trusted, listened and followed the legal counseling and advice provided by two Air Force professionals.”  However, we fail to see the connection between the advice the applicant received and his eventual discharge from the Air Force.  Even if the applicant was led to expect a different result by his counsel and the education officer, their views were speculative at best since the decision on his case was in the hands of his commander and the discharge authority.  As has been pointed out in the advisory prepared by AFPC/JA, the discharge notification to the applicant clearly put him on notice of the reason he was being discharged.  The applicant’s commander was not bound to consider the applicant’s enrollment and payment of funds into the Montgomery GI Bill in deciding the appropriate discharge action.  The applicant has not provided sufficient evidence to show that his discharge was not in accordance with pertinent Air Force instructions.  Further, even if the applicant had not signed his DD Form 214, it would not have changed the results of his discharge.  Rather, the procedure in these circumstances is simply to annotate the DD Form 214 with the statement “member refused to sign.”  Additionally, we believe the decisional rationale prepared by the Air Force DRB adequately addresses the applicant’s assertions regarding the issues of equity and propriety.  Finally, we note that AFPC/DPPAT has notified the applicant his additional $600.00 contribution to the Montgomery GI Bill is being refunded.  We believe this provides adequate relief for any possible miscounseling by the education officer.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number BC-2004-02375 in Executive Session on 17 November 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPRS, dated 5 Aug 04.
    Exhibit D.  Memorandum, AFPC/JA, dated 13 Sep 04.
    Exhibit E.  Letter, SAF/MRBR, dated 17 Sep 04.
    Exhibit F.  Letter, Applicant, dated 15 Oct 04.

                                   Panel Chair