RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-00528 INDEX CODE: 110.02 XXXXXXXXXXXXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) discharge be upgraded to a general (under honorable conditions) discharge. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He would like an upgrade of his discharge so he could receive Veterans Administration (VA) benefits. In support of his appeal, the applicant provided a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States. The applicant's complete submission, with attachment, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 16 November 1972, the applicant enlisted in the Regular Air Force at the age of 20. He was progressively promoted to the grade of staff sergeant (E-5) effective 1 August 1984. During his time on active duty, the applicant received eight Article 15s, and was demoted four times as a result of the Article 15 punishments. The violations he committed that resulted in Article 15 action included selling drugs, wrongful use of marijuana, two counts of assault, absent without leave, wrongful departure from his place of duty without authority, two counts of drunkenness (once in uniform), wrongfully having sexual intercourse with a women not his wife, two counts of failure to go at the time prescribed to his appointed place of duty, operating a motor vehicle while intoxicated, and willfully disobeying a lawful order On 12 March 1987, his commander notified the applicant that he was recommending him for a UOTHC discharge for a pattern of misconduct under the provisions of Air Force Regulation (AFR) 39-10, paragraph 5-47b. The applicant consulted counsel and waived his right to submit statements in his own behalf. On 18 May 1987, the applicant submitted an unconditional waiver of his right to an administrative discharge board hearing. On 19 May 1987, the Non-commissioned Officer, Civil Law, recommended the commander forward his recommendation to higher headquarters to accept the applicant’s conditional waiver and that he be discharged with a UOTHC discharge without probation and rehabilitation (P&R). On 27 July 1987, the Deputy Staff Judge Advocate at the higher headquarters found the case to be legally sufficient and recommended the conditional waiver be accepted. On 29 July 1987, the discharge authority approved the recommendation and directed the applicant be discharged with a UOTHC discharge pursuant to the provisions of AFR 39-10, paragraph 5-47b, without P&R. The applicant was discharged effective 10 August 1987. He served 14 years, 8 months, and 25 days on active duty. On 2 October 1997, the Air Force Discharge Review Board (AFDRB) considered and denied the applicant’s request to upgrade his discharge. On 14 March 2008, the applicant was given an opportunity to submit comments about his post service activities (Exhibit C). Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report. On 22 May 2008, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days (Exhibit D). The applicant responded with a personal statement and two letters of character reference (Exhibit E). ________________________________________________________________ _ 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. We took notice of the applicant's complete submission in judging the merits of the case; however, 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. We considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis. Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought. ________________________________________________________________ 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 this application in Executive Session on 9 July 2008, under the provisions of AFI 36-2603: XXXXXXXXXXXX, Panel Chair XXXXXXXXXXXX, Member XXXXXXXXXXXX, Member The following documentary evidence was considered for AFBCMR Docket Number BC-2008-00528: Exhibit A. DD Form 149, dated 28 Jan 08, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR, dated 14 Mar 08, w/atch. Exhibit D. Letter, AFBCMR, dated 22 May 08, w/FBI Report. Exhibit E. Applicant’s Response, not dated, w/atchs. XXXXXXXXXXXXXX Panel Chair