RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER: BC-2005-00071
							INDEX CODE 107.00, 100.06
	 						COUNSEL:  None

							HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  8 Jul 06

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APPLICANT REQUESTS THAT:

His 1983 Bad Conduct Discharge (BCD) and Reenlistment Eligibility (RE) code be upgraded so that he can reenlist.

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THE APPLICANT CONTENDS THAT:

During the period in question, he was going through a separation and subsequent divorce.  His wife had removed funds from their checking account without his knowledge and he did not know he was writing bad checks.  He was emotionally unstable and most of his absent without leave (AWOL) periods were the result of his being found in bed after he was supposed to be on duty.  Since his discharge, he had only two major legal problems: the first was a driving-under-the-influence (DUI) and the other was a breaking-and-entering (B&E) that he changed his mind about after he started.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 29 Jan 01 for a period of four years.  He was assigned to the 57th Aircraft Generation Squadron at Nellis AFV, NV as a unit tactical aircraft maintenance specialist.  

Medical entries indicate, on 31 Aug 81, Social Actions (SA) referred the applicant for evaluation of alcohol and drug use.  He had been experiencing trouble sleeping.  Sep 81 entries reflect the applicant’s wife had left him about three months ago and, on 25 Sep 81, his commander referred him for evaluation due 
to emotional, marital, and legal problems and possible suicidal ideation.  The applicant had been undergoing psychotherapy without progress.  

On 8 Oct 81, the applicant was admitted into the hospital due to depression and suicidal ideation.  On 28 Oct 81, he failed to report to the First Sergeant’s office after being discharged from the hospital.  The applicant voluntarily returned to duty on 1 Nov 81.

On 15 Dec 81, he was stopped for having expired license plates and found to have outstanding warrants for failure to appear on previous tickets.  He was incarcerated at the North Las Vegas Jail (NLVJ) pending trial.  On 17 Dec 81, he was released from the NLVJ custody after being convicted of several traffic violations.  He was fined $805.00.

On 29 Jan 82, the applicant failed to report to his appointed place of duty.  On 2 Feb 82, he voluntarily returned to duty.  On 16 Feb 82, he was placed in civil confinement at the NLVJ for neglecting to pay fines from previous arrests.  He was released on 17 Feb 82, but did not report to anyone in authority.  His release was not known until 19 Feb 82; he was administratively classified as a deserter due to pending action on the previous AWOL.

On 11 Mar 82, the Airman Performance Report (APR) for the period 29 Jan 81 through 28 Jan 82, was referred to the applicant.  He was marked down severely in many performance factors and was given an overall rating of 1 (9 being the highest).  The evaluators found the applicant’s performance, attitude, and ability to conform to military standards sorely lacking.  The applicant did not contest the report.

On 15 Mar 82, the applicant requested emergency evaluation to discuss the effects of illegal drug use over the weekend (hashish, alcohol, and other unknown substances).  The medical report noted the effects/symptoms suggested hallucinogenics.  The commander was contacted for drug screening.

On 10 May 82, a special court-martial (SCM) convened at Nellis AFB and the applicant was tried for the following:

	--Charge I, Violation of UCMJ, Article 123a, knowingly writing checks with insufficient funds for the following 12 Specifications:  

		1.  On 20 Jun 81, a check for $50.00 to the Nellis AFB 
					Exchange.
		2.  On 21 Jun 81, a check for $100.00 to the Exchange.
		3.  On 22 Jun 81, a check for $50.00 to the Exchange.
		4.  On 25 Jun 81, a check for $100.00 to the Exchange.
		5.  On 26 Jun 81, a check for $100.00 to the Exchange.
		6.  On 26 Jun 81, a check for $100.00 to the Exchange.
		7.  On 1 Sep 81, a check for $50.00 to an individual.
		8.  On 1 Sep 81, a check for $50.00 to an individual.
		9.  On 1 Sep 81, a check for $65.00 to an enlisted member.
		10. On 1 Sep 81, a check for $50.00 to an enlisted member.
		11. On 3 Sep 81, a check for $40.00 to an enlisted member.
		12. On 15 Sep 81, a check for $40.00 to an individual.

	--Charge II, Violation of UCMJ, Article 86, being AWOL and leaving his appointed place of duty without authority on:

		1.  1 Nov 81.
		2.  15-17 Dec 81.
		3.  29 Jan-2 Feb 82.
		4.  16-22 Feb 82.
		5.  9 Mar 82.

On Charge I, the applicant pled not guilty to all specifications.  On Charge II, he pled guilty to the first specification; not guilty to the second, third and fifth specifications; and guilty to the fourth specification except for the period 18-22 Feb 82, rather than 16-22 Feb 82.

On Charge I, the court found the applicant not guilty of the first through sixth specification; guilty of the seventh, eighth, ninth, tenth and eleventh specifications; and guilty of the twelfth specification except on 19 Sep 81, rather than 15 Sep 81.  On Charge II, the court found the applicant guilty of the first through fourth specifications but not guilty of the fifth specification.  

Punishment was confinement at hard labor for five months, forfeiture of $150.00 per month for five months, and a BCD.  The sentence was adjudged on 20 May 82 and, following appellate processes, approved on 14 Jul 82.  

The applicant was released from confinement on 24 Sep 82 and returned to duty.  On 8 Feb 83, the Air Force Court of Military Review affirmed the findings and sentence.

The applicant was separated in the grade of airman basic on 1 Mar 83, with a BCD and an RE code of 2B (separated with less than an honorable discharge), after one year, three months and nine days of active service.  Time lost for the following periods:  28-31 Oct 81, 15-16 Dec 81, 29 Jan-1 Feb 82, 16-21 Feb 82, and 20 May 82-23 Sep 82.

Pursuant to the Board's request, the Federal Bureau of Investigation (FBI), Washington, D.C., provided an investigative report which is attached at Exhibit C.  

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AIR FORCE EVALUATION: 

HQ AFPC/DPPRS believes the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discharge authority’s discretion. The applicant has not substantiated any errors or injustices and his appeal should be denied.

A complete copy of the evaluation is at Exhibit D.
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APPLICANT’S REVIEW OF EVALUATION: 

A complete copy of the Air Force evaluation was forwarded to the applicant on 21 Jan 05 for review and comment within 30 days.  As of this date, this office has received no response.

On 8 Feb 05, the AFBCMR Staff invited the applicant to submit post-service information.  On 3 Mar 05, a copy of the FBI report was forwarded to the applicant for review and comment within 20 days.  As of this date, this office has received no response.

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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 not timely filed; however, it is in the interest of justice to waive the failure to timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  The applicant’s contentions are duly noted; however, we are not persuaded his BCD and RE code should be changed.  At the time members are separated from the Air Force, they are furnished an RE code predicated upon the quality of their service and circumstances of their separation.  After a thorough review of the evidence of record, we believe that, given the circumstances pertaining to the applicant’s special court-martial and the resultant BCD, the RE code issued was in accordance with the appropriate directives.  The applicant has not established to our satisfaction that the actions taken against him were not driven by his own misconduct.  Further, according to the FBI report, the applicant continued his misbehavior after his separation.  Therefore, we conclude relief is not warranted on the basis of error, injustice, or clemency.

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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 this application in Executive Session on 8 June 2005 under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence relating to AFBCMR Docket Number BC-2005-00071 was considered:

	Exhibit A.  DD Form 149, dated 28 Dec 04, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  FBI Report.
	Exhibit D.  Letter, HQ AFPC/DPPRS, dated 19 Jan 05.
	Exhibit E.  Letter, SAF/MRB, dated 21 Jan 05.
	Exhibit F.  Letters, AFBCMR, dated 8 Feb & 3 Mar 05.

								
								Panel Chair