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AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

AUG 3 11998 

IN THE MATTER OF: 

DOCKET NUMBER:  97-01105 
COUNSEL : 
HEARING DESIRED:  NO 

APPLICANT REOUESTS THAT: 

He be reinstated in the Regular Air Force in the grade of airman 
(E-21, which was the grade he held at the time of discharge. 

APPLICANT CONTENDS THAT: 

The  evidence  supports allegations  that  the  discharge  authority 
acted unwisely and was improperly biased toward discharging him. 
Applicant  alleges  that  the  discharge  authority  discharged  him 
prematurely  before  completion  of  an  investigation  of  three 
Inspector  General  (IG) complaints  he  filed  and  the  discharge 
authority failed to pursue his(app1icant's) allegation of ethnic 
discrimination.  He  alleges  there  were  errors  or  injustices 
(b) 
regarding: 
defamation/intimidation,  (c)  denial  of  due  process,  (d) 
dereliction of duty, and  (e) harassment. 

discrimination, 

(a) 

ethnic 

Applicant's submission is attached at Exhibit A. 

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STATEMENT OF FACTS: 
Applicant enlisted in the Regular Air Force on 3 October 1988 for 
a period of four (4) years in the grade of airman basic. 
On 4 May 1990, while serving in the grade of airman, applicant's 
Squadron Commander notified applicant that  she was recommending 
his  discharge  from  the  U.  S.  Air  Force  for  misconduct; 
specifically, for minor disciplinary infractions.  The Squadron 
Commander stated that if the recommendation was approved, she was 
recommending  applicant's service  be  characterized  as  general. 
The Squadron Commander stated that  her  reasons for this action 
were:  (a)  On or about 18 February 1990, applicant was involved 
in a vehicle  accident  that  resulted in serious physical  injury 
and later charged with reckless imprudence, for which applicant 
received  a  Letter  of  Reprimand/Unfavorable  Information  File 
(LOR/UIF) on 30 April  1990.  (b)  On  or about  12 March  1990, 
applicant  failed  to  obey  a  lawful  written  order  in  that  he 

operated his privately owned vehicle  (POV) while on revocation, 
for which he received an Article 15 on 10 April 1990.  Punishment 
consisted  of  a  reduction  to- the  grade  of  airman, from  airman 
first class, and 30 days extra duty.  (c)  On or about 29 March 
1990,  applicant  failed  to  maintain  AFR  35-10  standards by  not 
shaving  and  received  a  Letter  of  Counseling  (LOC) on  29 March 
1990.  (d)  From on or about  19 May  1989  to mid-February 1990, 
applicant  failed  to  maintain  the  minimum  amount  of  liability 
insurance on his  POV and  received an LOR/UIF on 27 March 1990. 
(e)  On or about 20 March 1990, applicant failed to maintain AFR 
35-10 standards by  not  having  a proper  military  hair  cut, for 
which  he  received  an LOC on  20 March  1990.  (f)  On or  about 
16 March  1990,  applicant  failed to maintain AFR  35-10 standards 
by  not  having  a proper military  hair  cut  and  for changing the 
color of  his hair to an orange tint  and received an LOC  on 16 
March 1990.  (9)  On or about 26 February 1990, applicant failed 
to maintain AFR  35-10 standards by not  having  his boots shined 
and his uniform pressed and received an LOC on 26 February 1990. 
(h)  On or about  18 February 1990, applicant failed to report a 
serious vehicle accident in which he was involved and received an 
LOC  and  revocation of  driving  privileges  on  22 February  1990. 
(i)  On or about 21 December 1989, applicant was negligent in the 
performance of his duties in that he repeatedly failed to follow 
proper procedures  and  received an LOC  on  9  January  1990. 
( j )  
Applicant  received a verbal  counseling on 21  December 1989  for 
failing to obey the posted speed limit.  (k)  Applicant received 
an LOC on 11 December 1989 f o r   failing to obey the posted speed 
limit  on  10 December  1989. 
(1)  Applicant  received  a verbal 
counseling  (no date)  in  which  he  was  cited  for  operating  an 
unsafe vehicle on 4 June 1989  in that his POV's  front tires had 
no tread. 
On  4 May  1990,  applicant  signed  the  "Receipt of  Notification 
Lettertt and on 15 May 1990 indicated that he had been notified of 
the Squadron Commander's recommendation for discharge.  Applicant 
did  consult military  legal  counsel  and  submitted  statements  in 
his own behalf for consideration. 
On  15  May  1990  the  Squadron  Commander  forwarded  the 
recommendation  for  discharge  on  the  applicant  to  the  Wing 
Commander.  The  Squadron Commander did  not  recommend probation 
and rehabilitation stating that she had given the applicant ample 
opportunity to  improve his military deportment and  that  he  has 
chosen  not  to  conduct  himself  in  a  responsible  manner  after 
rehabilitative efforts. 

The  Headquarters  #Air 
Force  Staff  Judge  Advocate  (SJA) 
reviewed  the  recommendation  for  discharge  and  found  it  to  be 
legally  sufficient.  The  SJA, on  30 May  1990,  recommended  the 
applicant  be  discharged  with  a  general  discharge  without 
probation and rehabilitation.  The Discharge Authority  approved 
the recommended administrative discharge action on 31 May 1990. 

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Applicant was discharged on 14 June 1990 under the provisions of 
AFR 39-10  (Misconduct -  Pattern Conduct Prejudicial to Good Order 
and  Discipline)  in  the  grade  of  airman with  a  General  (Under 
Honorable Conditions) discharge.  He served 1 year, 8 months and 
12 days of active duty. 
Applicant made his first application to the Air Force Discharge 
Review  Board  (AFDRB)  for  an  upgrade  of  his  discharge  to 
honorable.  The AFDRB  denied his request on 10 September 1991. 
The Board noted that "there is no requirement to delay discharge 
processing pending completion of an IG investigation.ll  The Board 
found no legal or equitable basis for an upgrade of applicant's 
discharge. 

Applicant then applied to the Air Force Board for Correction of 
Military  Records  (AFBCMR) ,  however,  later  withdrew  his 
application on 15 February 1995 pending a decision from the AFDRB 
on his  second application.  Applicant's request  for withdrawal 
was approved, without prejudice on 21 February 1995. 
Applicant made a second application to the AFDRB again requesting 
upgrade of discharge to honorable.  He was granted a rehearing. 
The  AFDRB  again  denied  applicant's  request  f o r   upgrade  of 
discharge on 20 March 1995.  The AFDRB did, however, direct that 
the narrative section of the applicant's DD Form 214 be corrected 
to read I'Misconduct -  Minor Disciplinary Infractions"  in order to 
reflect the correct basis for discharge. 
The Joint Service Review Authority  (JSRA) amended the decisional 
document prepared by  the AFDRB on 20 March  1995 to clarify the 
effect, if any, of the denial of  applicant's right  to have  his 
father  appear  to  speak  on  the  applicant's behalf  during  the 
applicant's  Article  15  proceeding,  on  the  character  of  the 
applicant's discharge.  The JSRA found no evidence which would 
overcome the presumption of regularity and concluded that "based 
on  the  numerous  letters  of  reprimand  and  counseling,  the 
discharge  (and the resulting characterization of  service) would 
have been proper and equitable without the Article 15." 

AIR FORCE EVALUATION: 

The  Military  Personnel  Management  Specialist,  HQ  AFPC/DPPRP, 
states  that  applicant's case  has  been  reviewed  for  separation 
processing and there are no errors or irregularities causing an 
injustice  to  the  applicant. 
The  discharge  complies  with 
directives in effect at the time of his discharge.  The discharge 
was consistent with the procedural  and  substantive requirements 
of  the  discharge  regulation  and  applicant  was  provided  full 
administrative  due  process. 
They  recommend  the  request  be 
denied. 

A copy of the Air Force evaluation is attached at Exhibit C. 

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The  Chief,  Special  Activities,  HQ  AFPC/DPPAES,  states  that 
reenlistment eligibility  (RE) code 'r2B" is correct.  The type of 
discharge drove assignment of the RE code.  Exhibit D. 
The Chief, Reenlistment &  Retraining, HQ AFPC/DPPAE, states that 
their records indicate the applicant would have been eligible to 
retrain during his 35th month of enlistment  (September 1991) had 
he remained on active duty and, provided the commander would have 
selected him for reenlistment.  Exhibit E. 
The Chief ,  Inquiries/AFBCMR Section, Airman Promotion Branch, HQ 
AFPC/DPPPWB,  states  that  applicant  was  promoted  to  airman  and 
airman fist class upon the completion of  the  required time-in- 
grade  (TIG).  He was reduced to airman on 10 April 1990 and would 
not have met  the TIG again to be promoted to airman first class 
until  10 February  1991.  Assuming he had  been promoted back  to 
airman first class in February 1991, he could not have met the 20 
months  TIG  requirement  to  be  promoted  to  senior airman before 
completion of his initial enlistment on 2 October 1992.  Based on 
the  numerous  reasons  that  were  the  basis  for  discharge,  the 
applicant would  not  have  been  recommended  for promotion.  Non- 
selection for reenlistment  is also an  automatic  ineligible  €or 
promotion consideration.  They do not support a promotion to any 
grade. 

A copy of the Air Force evaluation is attached at Exhibit F. 

The  Senior Attorney-Advisor, HQ AFPC/JA, lists a chronology of 
events relevant to the applicant's request for correction of his 
records (see attached). 

HQ  AFPC/JA  states  that  the  applicable  regulation  for 
administrative  separation of  airmen at  the  time  of  applicant's 
discharge was AFR 39-10.  This regulation provides that an airman 
may be  discharged for a pattern of misconduct consisting solely 
of minor  disciplinary infractions.  During the approximately 10 
months of applicant's incidents of misconduct, he had an adequate 
opportunity to overcome his deficiencies and failed to do so.  HQ 
AFPC/JA strongly concurs with the discharge authority's decision 
to discharge the applicant, without probation and rehabilitation, 
because of the overwhelming amount of evidence which supports a 
regulatory basis  for separation.  In  fact, they  note  that  the 
applicant  could, and  probably  should, have  received  an  "under 
other than honorable conditions" discharge for his commission of 
a serious offense of hit-and-run and failure to report a serious 
accident. 

Applicant cites five allegations of unfair treatment. 

Ethnic  Discrimination:  The  alleged  discriminatory  remark  was 
that the Deputy Staff Judge Advocate  "had been to 
country did not  show him  much."  T 
rk only 
substandard visit to the country of 
and is not indicative 

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of any racial hatred toward -people. 
The evidence presented 
by  the  applicant  does  not  prove  by  a  preponderance  of  the 
evidence that the applicant's discharge was in any way, shape or 
form influenced by ethnic discrimination. 

Applicant  claims  that  his  unit 
Defamation/Intimidation: 
commander  lied  to  the  discharge  authority  in  a  letter  which 
stated that the applicant's insurance company was refusing to pay 
the accident claim.  The applicant fails to mention that at the 
time the unit commander wrote the letter, the statement was true. 
Thus, this allegation is wholly without merit. 

Denial of Rights:  Applicant believes that his due process rights 
were violated during his Article  15 hearing when his father was 
not  allowed  to  speak  on  his  behalf  during  the  reading of  his 
punishment.  The unit commander stated that while the applicant's 
father was allowed to participate in previous meetings with the 
first sergeant, his father became a disruptive influence, and the 
commander was informed by the legal office that he  Ifhad no legal 
obligation to let applicant's father sit  in on this portion of 
the reading of the Article 15."  The fact that at the punishment 
stage of the Article 15, there was no need for representation of 
the applicant.  The commander noted that applicant '!was afforded 
the opportunity to have his supervisor present during the reading 
of  the  recommended punishment  portion of  the Article  15.11  HQ 
AFPC/JA concurs with the JSRA findings that this issue is without 
merit. 

First,  the  applicant  claims  the  base 
Dereliction  of  Duty: 
Inspector  General  (IG)  was  derelict  in  his  duties  when  he 
improperly refused to hear applicant's complaint on an occasion 
when the applicant failed to disclose the subject matter of his 
complaint. 
It  was  reasonable  for  the  IG  to  assume,  after 
receiving no additional information from the applicant, that the 
basis for the complaint was the Article 15 appeal.  Thus, the IG 
was correct in informing the applicant that the administration of 
nonjudicial punishment is beyond the purview of the IG.  Second, 
applicant  claims the wing  commander was derelict  in his  duties 
because he approved the discharge before the completion of an IG 
investigation and Action Line complaint.  While it may have been 
more  appropriate  to  await  the  outcomes  of  these  complaints, 
neither  report  would  have  helped  the  applicant or  changed  the 
outcome  of  his  discharge  because  both  reports  correctly  found 
applicant's complaints were without merit.  They also agree with 
the  AFDRB's  conclusion  that  there  is  no  requirement  to  delay 
discharge processing pending completion of an IG investigation. 
Harassment:  Applicant  believes he  is  the  victim  of  harassment 
resulting from what  he  deems as  "trivial"  dress and  appearance 
violations during a two-week period.  He submits no evidence to 
show that he did, in fact, meet AFR 35-10 standards of dress and 
personal appearance on the four occasions for which he  received 
letters of counseling. 

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In  the  absence  of  evidence  to  the  contrary,  military 
administrators are presumed  to act  correctly, lawfully, and  in 
good  faith in carrying out their official duties.  Applicant's 
allegations of bad faith fall far short of establishing evidence 
of  some  specific  intent  to  injure  the  applicant,  and  federal 
courts  require  such  proof  in  the  record  to  overcome  the 
presumption of regularity of the proceedings. 
AFPC/JA  recommends the applicant's request for reinstatement be 
denied.  They also concur with the JSRA and the AFDRB decisions 
to  deny  the  request  for upgrade  of  discharge  from  general  to 
honorable.  They find no evidence of error or injustice and, in 
their  opinion, applicant  has  failed  to  sustain  his  burden  of 
establishing an error or injustice. 

A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit G. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Copies  of  the  Air  Force  evaluations  were  forwarded  to  the 
applicant on 28 July 1997 for review and response within 30 days. 
Applicant  obtained  counsel  who  submits  a  letter,  with 
attachments, in support of applicant's appeal. 

Counsel states that  in view of  the various opinions which have 
been  issued  on  the  arguments  for  reinstatement, applicant  now 
asks the AFBCMR to reinstate him at the rank of airman (E-2), the 
rank he held when discharged.  Counsel asks the Board to consider 
applicant's record prior to the automobile accident.  Applicant's 
problems  really  began  with  the  accident  which  occurred  on 
18 February  1990. 
He  was  in  a  dangerous  area  where  U.  S. 
servicemen had  been  attacked  in public.  There  is  no question 
that  applicant made  a mistake  in not  immediately reporting the 
accident.  However, he also states that he did not get a chance 
to report it once he reached the base, as the authorities were 
already there looking for him. 
Counsel submits a copy of a Itcomplaint of DecisiorP  to the Joint 
Service  Review  Agency  (JSRA) ,  dated  13  May  1993,  which  was 
submitted by the applicant's attorney for the AFDRB hearing. 
A  copy of the counsells response, with attachments, is attached 
at Exhibit I. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2.  The application was timely filed. 
3 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
a  thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we  are  not  persuaded  that  he  should be  reinstated 
into the Air Force in the grade of airman, the grade he held at 
the time of discharge.  His contentions are duly noted; however, 
we  do  not  find  these  assertions,  in  and  by  themselves, 
sufficiently persuasive to override the rationale provided by the 
Air Force and the Air Force Discharge Review Board  (AFDRB).  The 
comments  of  the  Office  of  the  Judge  Advocate  General  are 
supported  by  the  evidence  of  record  and  also,  the  facts  and 
opinions  stated  in  the  AFDRB  Brief  appear  to  be  based  on  the 
evidence  of  record  and  have  not  been  adequately  rebutted  by 
applicant.  We  therefore agree with  the recommendations of  the 
Air Force and the AFDRB and adopt the rationale expressed as the 
basis for our decision that the applicant has failed to sustain 
his burden that he has suffered either an error or an injustice. 
Therefore, we find no compelling basis to recommend granting the 
relief sought. 

THE BOARD DETERMINES THAT: 
The  applicant be  notified  that  the  evidence presented  did  not 
demonstrate  the  existence  of  probable  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 23  July 1998,  under the provisions of AFI 
36-2603. 

Ms. Martha Maust, Panel Chair 
Mr. Robert W. Zook, Member 
Mr. Kenneth L. Reinertson, Member 

The following documentary evidence was considered: 

Exhibit A. 
Exhibit B .  
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H . 
Exhibit I. 

DD Form 149, dated 25 Mar 97, w/atchs. 
Applicant's Master Personnel Records. 
Letter, HQ AFPC/DPPRP, dated 1 May 97. 
Letter, HQ AFPC/DPPAES, dated 6 May 97. 
Letter, HQ AFPC/DPPAE, dated 12 May 97. 
Letter, HQ AFPC/DPPPWB, dated 14 May 97, w/atch. 
Letter, HQ AFPC/JA, dated 16 Jul 97. 
Letter, AFBCMR, dated 28 Jul 97. 
Counsel's Letter, dated 15 Oct 97, w/atchs. 

mTHA  MAUST / 
Panel Chair 

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