ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-1988-01775

XXXXXXXXXXX	COUNSEL:  XXXXXXXXX
	
	HEARING REQUESTED:  YES

APPLICANT’S REQUEST

1. The Board reconsider his request to have his administrative discharge changed to a length of service retirement.

2. He be given constructive service credit to qualify for a length of service retirement.

3. He receive payment of all back pay and allowances, with interest, or in the alternative, restore him to active duty under the Probation and Rehabilitation (P&R) Program.

4. His DD Form 214, Certificate of Release or Discharge from Active Duty, and other official records be changed to reflect changes made by the Board.

RESUME OF THE CASE

The applicant is an honorably discharged Air Force technical sergeant (E-6).  

On 27 Sep 88, the Board considered and denied his request to correct his records to reflect the decision to discharge was reversed, or in the alternative, he be restored to active duty under the P&R Program, payment of all back pay and allowances, to include interest, finding the applicant had provided insufficient evidence of an error or injustice to justify relief.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit F. 

On 9 Oct 20, counsel, on behalf of the applicant, requested reconsideration of his request to reverse his discharge by modifying the discharge date from 18 Dec 85 to 30 Jun 86, and grant the applicant an Air Force retirement retroactive to 1 Jul 86, and order payment of all back retirement pay and allowances from 1 Jul 86 to present, including interest.  In addition, he requests waiver of all requirements for the applicant to serve 20 years active duty to be eligible for retirement pay and/or give constructive credit for his inactive Army reserve duty from 23 Sep 67 – 12 Jun 68 toward 20 years of active duty for retirement purposes, or give the applicant credit for his 57 days of accrued leave toward his period of time from retirement date of 1 Jul 86.  Finally, correct his DD Form 214 and other official Air Force records to reflect the changes made by the Board.  He again contends a gross injustice was imposed upon the applicant when he was discharged on 18 Dec 85, which was almost six months before his projected 20 year retirement date of 1 Jul 86, for an alleged relatively minor offense of a single use of marijuana based only on a commander-directed urine test, without any probable cause, corroborative witnesses, and without granting him P&R despite his excellent work performance record and character statements from fellow supervisors and workers.  

The court-martial charges resulting from the commander-directed urinalysis were dropped due to lack of probable cause; however, instead of returning the applicant to perform his regular Air Force duties, an administrative discharge board was convened about a year later.  Despite hearing positive reports from a substantial number of doctors and administrative personnel who knew the applicant well, the administrative board determined the applicant should be discharged without granting him the benefit of the P&R Program, even though he was eligible for the program.  In addition to the positive statements and testimony presented, an excellent duty performance report covering the period 16 Apr 84 – 15 Apr 85, with the highest possible ratings, showed the applicant performed his duties in an outstanding manner, and was ample justification to have been placed in the P&R program.  Had the administrative discharge board recommended placement in the P&R program, it would most likely have been granted by the discharge authority.  The applicant was given an honorable discharge, with the stated reason Misconduct-Drug Abuse, but the gross injustice was inflicted when he was not allowed to serve another four to six months on active duty to obtain his full military retirement.  The applicant served in Vietnam during the “shooting war” and his awards/decorations verify his Vietnam service was commendable.  This should by itself justify granting the applicant extra consideration in this matter.  The Board has the authority to rectify this injustice to include granting adjustments to the total time accumulated at discharge or waive any requirement to actually serve the full 20 years of active duty.

Substantial new evidence was discovered and is provided, to include letters of support from the Air Force colonel who approved the applicant’s discharge, and the applicant’s vice commander at the time of his discharge.  Also in support of his reconsideration request, the applicant submitted the following new evidence: (1) Stipulation of Fact, United States v. Applicant, 10 Apr 85; (2) Administrative Discharge memorandum, 11 Jun 85; (3) letters recommending correction of the applicant’s Air Force separation; (4) Character Statements; (5) summarized witness testimony from the applicant’s Discharge Board Hearing; (6) the applicant’s AF Form 910, TSgt, SSgt, Sgt Performance Report, for period 16 Apr 84-15 Apr 85; and (7) service member statement regarding retirement with less than 20 years active service. 

The applicant’s complete submission is at Exhibit G.

STATEMENT OF FACTS

On 11 Jun 85, according to documentation provided by the applicant, the discharge authority considered and denied P&R in accordance with AFR 39-10, Administrative Separation of Airmen, Chapter 7.

On 23 Aug 85, according to Special Orders No. XXXXX, the applicant was relieved from active duty, organization and station of assignment, effective 30 Jun 86, retired effective 1 Jul 86, and assigned to retired reserve until 5 Oct 05.

On 19 Nov 85, according to AFMPC/DPMARS2 advisory opinion, dated 18 May 88, the Secretary of the Air Force disapproved the application for retirement submitted by the applicant and directed the approved discharge be executed. 

APPLICABLE AUTHORITY/GUIDANCE

The National Defense Authorization Act for Fiscal Year 1993, Public Law 102-484, 23 Oct 92. Congress enacted the Temporary Early Retirement Authority (TERA) program, which permitted selected military members to retire early.  Section 534 of that law gave the Secretary of Defense authority to allow the Service Secretaries to permit early retirement for selected military members having more than 15 but less than 20 years of active service.  This temporary legislation is a force shaping drawdown tool and not an entitlement; i.e., all members meeting minimum eligibility criteria may not necessarily apply. The legislation clearly permits each service to target segments of its eligible population where it would most like to have losses occur.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits the Board remains unconvinced the evidence presented demonstrates an error or injustice.  In an earlier finding, the Board determined that there was insufficient evidence to warrant any corrective action regarding the applicant’s appeal. The Board has reviewed the applicant’s most recent submission and finds the evidence provided insufficient to warrant a reversal of the Board’s previous determination in this case. In support of the applicant’s submission, counsel provided numerous documents to include a statement from the discharge authority, which appears to contradict the recommendation he made regarding the applicant’s discharge over 34 years ago.  However, after a very careful review of his statement, the Board is not persuaded the most recent account had greater credibility than the original recommendation to administratively discharge the applicant.

Counsel also provides a solution by recommending the Board waive any requirement to serve a full 20 years and offers a statement from an officer who retired with less than 20 years in 1993, under what appears to have been the TERA program.  However, this program was not enacted until 1992, and only permitted selected military members to retire early.  In addition, TERA is a force management tool and not an entitlement.

Counsel alleges had the administrative discharge board recommended the applicant for placement on the P&R program, it most likely would have been granted by the Discharge Authority and this injustice would not have occurred.  However, according to the evidence provided by counsel, the discharge authority did consider P&R pursuant to AFR 39-10, chapter 7 and denied it because the facts indicated substandard performance and behavior over a period of eight months.  Furthermore, the discharge authority determined P&R would in fact create an unfavorable perception to young airmen and would in turn be detrimental to the good order and discipline.

While counsel may believe the applicant should have been selected for P&R because he was within four years of qualifying for retirement the discharge authority determined he was not qualified for this program.  Based upon the presumption of regularity in the conduct of governmental affairs and without evidence to the contrary, the Board must assume that the applicant's discharge was proper and in compliance with appropriate directives. Therefore, absent a showing that the decision to administratively discharge the applicant was arbitrary, capricious, or an injustice, the Board finds no further action is required in response to those allegations.  Given there is no basis to recommend his administrative discharge be changed to a retirement, the remaining requests for relief are rendered moot.  Accordingly, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-1988-01775-2 in Executive Session on 21 Apr 22:

, Panel Chair 
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 17 Oct 88.
Exhibit G:	Application, DD Form 149, w/atchs, dated 9 Oct 20.
Exhibit H:	Documentary evidence, including relevant excerpts from official records.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.