RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01674

XXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected in Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) to reflect airman first class (E-3) rather than airman basic (E-1).

APPLICANT’S CONTENTIONS

In October 2004, the Air Force Discharge Review Board (AFDRB) upgraded his general (under honorable conditions) discharge to honorable.  His grade was vacated based on the same circumstance that caused his general (under honorable conditions) discharge.  He is having a difficult time finding entry-level employment.  Veteran’s preference would give him a better chance to gain employment.  The state requirement for Veterans Preference is an honorable discharge and a grade of E-3.  He desires to provide a better life for his family.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force airman basic (E-1).

On 15 May 2002, while serving in the grade of E-3, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) after he grabbed an airman around the neck and struck her in the face with his fist, in violation of Article 128, UCMJ.  The applicant’s punishment consisted of a reduction to the grade of E-1 (suspended until 24 October 2002), after which time the punishment was to be remitted without further action, unless sooner vacated, a forfeiture of  $552 pay per month for two months, and 45 days extra duty.

On 26 June 2002, while serving in the grade of E-2, the applicant received nonjudicial punishment under Article 15, UCMJ when he willfully failed to inform his supervisor before taking breaks or eating meals, in violation of the Article 92, UCMJ.  The applicant also negligently failed to stay awake while performing additional duties, as it was his duty to do.  The applicant’s punishment consisted of a reduction in rank from E-2 to E-1, with a new date of rank of 4 June 2002 and 14 days extra duty.

On 12 August 2002, the applicant received a general (under honorable conditions) discharge.  He was credited with 2 years, 10 months and 21 days of active duty.

On 7 October 2004, according to DD Form 214 provided by the applicant, the AFDRB directed the applicant’s service characterization be upgraded from general (under honorable conditions) to honorable.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION

AFPC/DP2SPP recommends denying the application.  Based on the analysis of the facts and information provided, there is no evidence of an error or injustice with the commander’s decision to demote the applicant.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 19 May 2020, for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board is not persuaded by the applicant’s contention that the commander’s decision to vacate his grade to E-1 was improper or unjust.  In cases of this nature, the Board is not inclined to usurp the judgments of commanding officers absent clear evidence of an error or abuse of discretional authority.  The Board has no such showing here.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2020-01674 in Executive Session on 1 July 2020:

	Panel Chair
	Panel Member
	Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 26 March 2020.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SPP, dated 15 May 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 19 May 2020.

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.