RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03260 INDEX CODE: 110.02 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His under other than honorable conditions discharge (UOTHC) be upgraded to honorable. _________________________________________________________________ APPLICANT CONTENDS THAT: The UOTHC discharge has loomed over his head for 30 years and has affected his capability of obtaining good employment. In support of his application, the applicant provides a personal statement, copies of his Article 15 disciplinary punishments, copies of training certificates, copies of Letters of Appreciation, and a post-service letter. Applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: Applicant enlisted in the Regular Air Force on 21 August 1970 and was progressively promoted to the grade of sergeant. The applicant was notified by his commander that he was recommending his discharge from the Air Force under the provisions of AFM 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, with an under other than honorable conditions (UOTHC) discharge. The specific reasons for this action were that he received three Article 15s for asleep on post and failure to go; wrongful possession of marijuana and willfully disobeying a superior commissioned officer; a vacation action for wearing a wig to cover up shoulder length hair; and a Record of Court-Martial for being absent without leave (AWOL). He also was placed in deserter status. The applicant was placed in a correctional facility. On 20 September 1973, the applicant was discharged under the provisions of AFM 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program - in lieu of trial by Court-Martial, with an under other than honorable conditions (UOTHC) discharge. He served 3 years and 16 days of total active military service. Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, WV, indicated on 22 April 2009, that on the basis of data furnished, they are unable to locate an arrest record (Exhibit C). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial and states the applicant does not provide sufficient evidence that an error or injustice occurred. The applicant's personnel record reflects he committed a number of offenses which were dealt with appropriately under the Uniform Code of Military Justice (UCMJ). He was offered and accepted nonjudicial punishment three times and had a suspended punishment vacated. He was ultimately separated from the Air Force with an UOTHC discharge. The paperwork provided by the applicant is disjointed and confusing. He appears to argue that the defense he raised to the issue of wrongfully wearing a wig caused his commanders to falsify charges and documents against him. He also asserts his innocence with regard to the charge of wrongful possession of marijuana. He states the police report showing a positive test of the substance seized from him is a "LIE." The applicant's argument does not hold up, however, there is sufficient evidence in the record upon which the commander could have made the decisions he did. A review of the Article 15 and vacation actions indicates the applicant was afforded his full rights under Article 15, UCMJ. He was afforded the opportunity to consult with defense counsel and to present matters on his own behalf. There is no evidence the commander acted in an arbitrary or capricious manner. The complete AFLOA/JAJM evaluation is at Exhibit D. AFPC/DPSOS recommends denial and states the applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing. He provided no facts warranting a change to his discharge characterization or the removal of any documentation associated with his discharge. Absent the documentation, there is a presumption of regularity in which the applicant was afforded due process and the discharge was consistent with procedural and substantive requirements of the discharge regulation. The complete AFPC/DPSOS evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states he was guilty of one thing--he really did believe he had a constitutional right to challenge AFR 35-10. He never hurt anyone, never stole anything and he never lied to anyone. He just believes he had the right, if not the duty to control a part of his body. If he was simply AWOL or a drug abuser, why not court-martial him. Applicant's complete response is at Exhibit G. _________________________________________________________________ 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 excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. The discharge appears to be in compliance with the governing directives and we find no evidence to indicate that his separation from the Air Force was inappropriate. We find no evidence of error in this case and after thoroughly reviewing the documentation that has been submitted in support of the applicant's appeal, we do not believe he has suffered from an injustice. In addition, based on his overall record of service and the limited documentation related to his post-service activities and accomplishments, we are not persuaded that an upgrade of the characterization of his discharge on the basis of clemency is warranted. ________________________________________________________________ THE BOARD RECOMMENDS: 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. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2008-03260 in Executive Session on 14 May 2009, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2008-03260 was considered: Exhibit A. DD Form 149, dated 8 Aug 2008, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Negative FBI Response, dated 22 Apr 09. Exhibit D. Letter, AFLOA/JAJM, dated 17 Oct 08. Exhibit E. Letter, AFPC/DPSOS, dated 19 Feb 09. Exhibit F. Letter, SAF/MRBR, dated 20 Mar 09. Exhibit G. Applicant's Response, dated 13 Apr 09.