RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00368 COUNSEL: NONE XXXXXXXXXXXXXXXXX HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect: 1. An honorable characterization of service rather than a general (under honorable conditions). 2. A narrative reason for discharge of “convenience of the government – physical conditions” rather than “misconduct.” 3. His separation was “involuntary.” In addition, he requests any other appropriate relief, including return of GI Bill deposit monies. _________________________________________________________________ APPLICANT CONTENDS THAT: He would like to have the option to reenlist in another branch of service and fulfill the military obligation he feels he owes his country. In support of his appeal, the applicant provides a personal petition and a voluminous amount of military service records and documentation. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Regular Air Force on 3 February 2004. Following his receipt of two Article 15s, Unfavorable Information File, a Vacation of Suspension of Nonjudicial Punishment, a Letter of Reprimand, and a Record of Individual Counseling, the applicant’s commander notified him on 4 August 2005 that he was recommending him for a general (under honorable conditions) discharge for minor disciplinary infractions. The applicant acknowledged receipt of the notification, consulted counsel and presented a statement in his own behalf. After considering the applicant’s submission, the discharge authority approved the separation and directed a general (under honorable conditions) discharge without probation or rehabilitation. The applicant was involuntarily discharged effective 24 August 2005 after serving 1 year, 6 months, and 22 days on active duty. On 30 April 2009, the Air Force Discharge Review Board (AFDRB) reviewed and denied the applicant’s request to upgrade his discharge to honorable, to change the reason and authority for the discharge, and to change his reentry (RE) code. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOS recommends denial of the applicant’s request to upgrade his discharge and change his narrative reason for separation. DPSOS states that based on the documentation on file in the master personnel records, the applicant’s discharge, to include his characterization of service and his narrative reason for separation, was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The applicant did not provide any evidence of an error or injustice that occurred in the discharge processing. The complete DPSOS evaluation is at Exhibit C. AFPC/DPSOA recommends denial of the applicant’s request to change his RE code. DPSOA states the applicant received an RE code of “2B” (Separated with a general or under-other-than-honorable conditions discharge), based on the involuntary discharge with a general characterization of service. The RE code “2B” is required based on his involuntary discharge and general characterization of service in accordance with Air Force Instruction 36-2606, Reenlistment in the USAF, Chapter 3. The complete DPSOA evaluation is at Exhibit D. AFPC/DPSIT recommends denial of the applicant’s request to refund his GI Bill deposit. DPSIT states the All-Volunteer Force Educational Assistance Program referred to as the Montgomery GI Bill (MGIB), provides benefits for a variety of education and training programs. Title 38 United States Code, Chapter 30, Section 3011, stipulates that all MGIB-eligible individuals are automatically enrolled in the MGIB upon entering active duty and are given a one-time opportunity to disenroll should they desire not to participate in the program. The applicant did not decline participation and was enrolled on 10 February 2004. DPSIT indicates that if the applicant’s characterization of discharge is upgraded to honorable, his eligibility for the MGIB is still in question as the time served and reason of separation are contributing factors towards establishing eligibility. However, under Post-9/11 GI Bill, an honorable character of service and a minimum of 90 days of qualifying service beyond technical school completion, establishes eligibility for 36 months at a minimum of 40 percent rate. Every six months of service increases the rate of payment by ten percent. The complete DPSIT evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: It appears that despite the extensive effort on his part to challenge the discharge action, as indicated with the size and scope of his appeal, the reviewers to date not only fail to read the entire file, but never address the issues he has raised. He strongly urges the Board to please review his complete appeal record starting with his response to the AFDRB decision, dated 13 January 2010. He made mistakes, but they did not warrant what happened to him with this discharge. When examining all the facts, he hopes the Board will find that his discharge and treatment by the Air Force was inappropriate and did not warrant the discharge he received. The applicant’s complete rebuttal is at Exhibit G. _________________________________________________________________ BCMR MEDICAL CONSULTANT’S OPINION: The BCMR Medical Consultant recommends a partial grant by changing the applicant’s narrative reason for separation to “Convenience of the Government,” or as a minimum amending the DD Form 214 to reflect separation for “Minor Disciplinary Infractions.” The BCMR Medical Consultant states that based on the preponderance of evidence, at least one of the applicant’s initial periods of tardiness could be clearly explained by a disruptive Circadian sleep-wake cycle. His initial period of tardiness is not well explained in the record, if based on the applicant’s changing duty shifts. Nevertheless, the legitimate concerns for a sleep rhythm disturbance (not Sleep Apnea) should have been considered a likely cause of the applicant’s instances of failure to go. However, removing these from consideration in the applicant’s discharge action leaves his other three offenses, that is: driving under the influence of alcohol (albeit a charge reportedly dismissed), improper use of a B-1 maintenance stand, and unlawfully striking a fellow airman in the face; the latter earning an Article 15. Thus, although it is clear the trigger for the applicant’s discharge was likely his tardiness for duty, he had already established a pattern of minor disciplinary infractions that were unrelated to a sleep disturbance or other medical condition. The complete BCMR Medical Consultant’s evaluation is at Exhibit H. _________________________________________________________________ APPLICANT'S REVIEW OF BCMR MEDICAL CONSULTANT OPINION: If the Board supports the BCMR Medical Consultant’s findings, they must now consider his application still addressing the three issues that remain on his record. Two of these were off duty matters and the other was nothing more than a workplace notification that he was not using a B-1 maintenance stand properly. The maintenance stand issue was not disciplinary in nature or in any way connected to misconduct. There was no damage to any government property. He has previously provided the Board with documentation regarding the DUI charge. He was off duty and was convicted of driving while slightly impaired (less than .08 Blood Alcohol Content). The conviction was set- aside by the Court of XXXXXXX and the complaint was dismissed. Although he regrets this matter, it happened off-base and had no bearing or impact on his work. His Article 15 for Assault stemmed from an off-duty pushing and shoving match where there were no injuries other than a fingernail scrape on the other airman’s face. He was not the aggressor and tried to defuse the incident the best he could. He acted in self defense; however, was still punished. He would ask the Board to consider this information in their final decision. The applicant’s complete rebuttal is at Exhibit J. _________________________________________________________________ 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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of this case; however, we find insufficient evidence to grant the applicant’s requests. We note the BCMR Medical Consultant recommends partial relief in regard to changing the applicant’s narrative reason for separation based on the premise the applicant suffered from temporary sleep disturbance which was not considered by his chain of command as mitigating in his two instances of lateness for duty. While we acknowledge this may be true, we find the possibility of sleep disturbances insufficient to excuse his other three acts of misconduct. Therefore, we believe his current narrative reason for separation adequately describes the circumstances of his separation. In regard to the applicant’s request to change his characterization of service, we find no evidence of an error or injustice that occurred in the discharge processing. Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority. The applicant has provided no evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. Therefore, based on the foregoing, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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. _________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-00368 in Executive Session on 19 April 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-00368: Exhibit A. DD Form 149, dated 19 Jan 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOS, dated 17 Sep 10. Exhibit D. Letter, AFPC/DPSOA, dated 23 Sep 10. Exhibit E. Letter, AFPC/DPSIT, dated 1 Dec 10. Exhibit F. Letter, SAF/MRBR, dated 23 Dec 10. Exhibit G. Letter, Applicant, dated 11 Jan 11. Exhibit H. Letter, BCMR Medical Consultant, dated 7 Mar 11. Exhibit I. Letter, SAF/MRBR, dated 11 Mar 11. Exhibit J. Letter, Applicant, dated 27 Mar 11.