RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-02832
            INDEX CODE:  110

            COUNSEL:  None

            HEARING DESIRED:  No


_________________________________________________________________

APPLICANT REQUESTS THAT:

His general discharge be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was in the hospital when he received verbal orders to go  to  Saudi
Arabia.  He subsequently had a second medical condition:  Blockage  of
eurethia (sic).  He had a catheter  for  three  weeks  and  could  not
deploy due to this.  This was unjust to court-martial him.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military  Service  Date  (TAFMSD)
was 7 May 83.

Applicant’s Airman Performance Report (APR) profile follows:

            PERIOD ENDING          OVERALL EVALUATION

             15 Jun 84                     9
              2 Jan 85                     9
              4 Sep 85                     9
             15 May 86                     9
             15 May 87                     9
              4 Jan 88                     9
              4 Jan 89                     9
              4 Jan 90                     4 (New rating system)
             28 Sep 90                     2 (Referral Report)
             21 Aug 91                     2 (Referral Report)

On 14 Sep 84, applicant was notified  of  his  commander’s  intent  to
impose nonjudicial punishment upon him for the following:  on or about
10 Sep 84, while being posted  as  a  sentinel  at  the  Tactical  Air
Command (TAC) ramp, he was found sleeping upon his post.

On 20 Sep 84, after consulting  with  counsel,  applicant  waived  his
right to a trial by court-martial, requested a personal appearance and
did not submit a written presentation.

On 21 Sep 84, applicant was found guilty by his commander who  imposed
the following punishment:  Reduction from the grade  of  airman  first
class to the grade of airman and ordered into the Correctional Custody
Facility for 10 days.

Applicant did not appeal the punishment.  The Article 15 was filed  in
his Unfavorable Information File (UIF).

On 22 May 90, applicant was notified  of  his  commander’s  intent  to
impose nonjudicial punishment upon him for the following:  on or about
17 May 90, having knowledge of his duties,  he  was  derelict  in  the
performance of those duties in that he willfully failed to  confiscate
an invalid military identification (ID) card.

On 31 May 90, after consulting  with  counsel,  applicant  waived  his
right to a trial by court-martial, requested a personal appearance and
submitted a written presentation.

On 31 May 90, applicant was found guilty by his commander who  imposed
the following punishment:  Reduction from the grade of sergeant to the
grade of airman first class, forfeiture of $560 pay a  month  for  two
months, and 30 days’ correctional custody.  Reduction to the grade  of
airman first class was suspended until 29 Nov 90,  at  which  time  it
would be remitted without further action unless sooner  vacated.   The
period of correctional custody would commence on 1 Jun 90.

Applicant did not appeal the punishment.  The Article 15 was filed  in
his UIF.

The Air Force indicated that on 13 Jun 91, the applicant was  selected
for deployment to Saudi Arabia.  He had been  suffering  from  urinary
tract problems off and on since 1989 and on  14 Jun  91,  was  in  the
hospital having tests performed.  He was informed on 14 Jun 91 by  his
mobility officer that if he had a medical reason for not being able to
deploy, he needed to bring in a profile  from  the  physician  at  the
hospital.  Applicant never produced any such  profile  and  there  was
never any determination that he was unfit for duty  or  deployment  on
17 Jun 91.  The doctor who treated him testified at the  court-martial
and stated  that  the  condition,  which  he  considered  serious  and
potentially life threatening, existed well before 17 Jun  91  and  had
not been picked up on earlier examinations.

Subsequent  to  17 Jun  91,  applicant   underwent   further   medical
evaluation  and  it  was  determined  that  he  had  a   physiological
irregularity that was causing him chronic urinary tract  difficulties.
He was treated surgically to correct this condition in Sep 91.

On 9 Oct 91, a special  court-martial  action  against  the  applicant
convened at Homestead AFB, Florida.  He  was  charged  with  a  single
specification under Article 87.  According to the  specification,  the
applicant did, on or  about  17 Jun  91,  through  neglect,  miss  the
movement of Continental Airlines Flight 167 from  Miami  International
Airport, which he was required in the course  of  his  duty  to  move.
Applicant pled not guilty to the specification and the charge.

Applicant was found guilty of the specification and the charge.  After
hearing  evidence  appropriate  to  sentencing,  the  court  sentenced
applicant to confinement for three months, reduction from the grade of
sergeant to the grade of airman first class, and  forfeiture  of  $100
pay a month for three months.

On 20 Nov 91, the applicant was notified of his commander’s intent  to
recommend discharge from the Air Force for conduct prejudicial to good
order and discipline under the provisions of AFR 39-10,  paragraph  5-
47b, Section H, for the following reasons:

      a.    On or about  17 May  90,  applicant  willfully  failed  to
confiscate an invalid military ID card as it was his duty to do.  As a
result, applicant received an Article 15.

      b.    On or about 10 Oct 91, applicant was  court-martialed  and
found guilty of missing movement at Homestead AFB.

On 20 Nov 91, applicant was advised he had a right  to  legal  counsel
and the right to submit statements in his own behalf.  Upon consulting
counsel, applicant submitted a conditional waiver of his  right  to  a
hearing before an administrative discharge  board  provided  he  would
receive no less than a general discharge.  The case was  reviewed  and
found to be legally sufficient for discharge by the base legal office.

On 26 Dec 91, the discharge authority accepted the conditional  waiver
submitted by the applicant and approved the under honorable conditions
(general) discharge without probation and rehabilitation.

On 27 Dec 91, the applicant was discharged under the provisions of AFR
39-10 (Misconduct - Pattern Conduct  Prejudicial  To  Good  Order  and
Discipline) with a general (under honorable conditions)  discharge  in
the grade of airman first class with lost time from 17 Jun  to  18 Jun
91.  He was credited with 8 years, 7 months, and  21  days  of  active
service.

_________________________________________________________________


AIR FORCE EVALUATION:

The Associate Chief, Military Justice Division,  AFLSA/JAJM,  reviewed
this application and indicated, in part, that the evidence produced at
applicant’s court-martial was more  than  sufficient  to  sustain  the
conviction.  His voluntary actions on the night before  his  scheduled
deployment  placed  him  in  a  predicament  where  it  was  obviously
difficult to make it back to base in time  to  deploy.   However,  the
evidence  did  not  establish  that  it  would  have  been  physically
impossible  to  make  it  back  and  applicant  was  unsuccessful   in
convincing  the  court  of  same.   Moreover,  applicant’s  errors  in
judgment were primarily responsible for his  missing  the  deployment.
The medical evidence offered by the defense at trial is  of  no  legal
consequence.  There had been  no  contemporaneous  determination  that
applicant was in any way unfit for duty on 17 Jun 91 and he  undertook
no efforts to get medical personnel  to  ascertain  his  status  after
being informed of that option by his mobility officer.   The  squadron
was obviously entitled to consider applicant fit for deployment and he
was obligated  to  fully  perform  his  duties.   Applicant’s  medical
condition is significant only in terms of mitigation, and  considering
his behavior  the  night  prior  to  his  scheduled  deployment,  that
mitigating factor is entitled to very little  weight.   Applicant  was
fully represented at his court-martial and his  rights  were  properly
protected.  There were no errors that  prejudiced  his  rights.   JAJM
recommends that the Board deny applicant the requested relief.

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

The  Military  Personnel  Management  Specialist,   AFPC/DPPRS,   also
reviewed this application  and  indicated  that  this  case  has  been
reviewed and the discharge was  consistent  with  the  procedural  and
substantive requirements of the discharge regulation  and  was  within
the discretion of the discharge authority and that the  applicant  was
provided  full  administrative  due  process.   The  records  indicate
applicant’s military service was reviewed and appropriate  action  was
taken.  He did not submit evidence  or  identify  any  errors  in  the
discharge processing nor provide facts which warrant an upgrade of the
discharge he  received.   Accordingly,  DPPRS  recommends  applicant’s
request be denied.

A complete copy of their evaluation is attached at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were  forwarded  to  applicant  on
6 Apr 98 for review and response.  As of this date,  no  response  has
been received by this office.

_________________________________________________________________


ADDITIONAL AIR FORCE EVALUATION:

The BCMR Medical Consultant reviewed this  application  and  indicated
that a thorough review of medical records show that the applicant  was
treated for several sexually transmitted diseases (STD) from  1987  to
1990, diseases which are known to produce strictures such as he  later
developed.  The first indication found of his problems relating to the
stricture is found in the Jul-Aug 91 time frame although the applicant
gave a long-standing history of pain with urination.   Upon  discovery
of the stricture, the applicant was briefly hospitalized in  late  Sep
91 when he had  placement  of  an  in-dwelling  catheter  in  a  minor
surgical procedure.  A follow-up study in Oct,  upon  removal  of  the
catheter, subsequently showed a normal flow of urine past the previous
stricture site.  This was not a life-threatening condition and  proper
management produced prompt resolution.  The applicant’s claim that  he
was medically incapacitated for duty at  the  time  of  his  scheduled
deployment is not supported by evidence of record.  While  he  had  an
irritating condition  for  many  months  relating  to  his  STD-caused
urethral narrowing, this was not of such severity  as  to  render  him
unfit for deployment and cannot, in retrospect, be considered  in  his
appeal for an upgrade of discharge.   Surgical  intervention  was  not
deemed necessary until some four months after his scheduled deployment
and his medical problems in no way were responsible  for  his  missing
movement.  The BCMR Medical Consultant recommends the  application  be
denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of  the  additional  Air  Force  evaluation  was  forwarded  to
applicant on 15 Apr 99 for review and response.  As of this  date,  no
response has been received by this office.

_________________________________________________________________

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 probable error or injustice.  After a thorough review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that his general discharge should be upgraded to  honorable.
His contentions  are  duly  noted;  however,  we  do  not  find  these
uncorroborated  assertions,  in  and   by   themselves,   sufficiently
persuasive to override the rationale provided by the  Air  Force.   We
therefore agree with the recommendations of the Air  Force  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 24 June 1999, under the provisions of  Air  Force
Instruction 36-2603:

                  Mr. Henry Romo, Jr., Panel Chair
                  Ms. Sophie A. Clark, Member
                  Ms. Ann L. Heidig, Member
                Mrs. Joyce Earley, Examiner (without vote)

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 10 Sep 97, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 3 Mar 98.
     Exhibit D.  Letter, AFPC/DPPRS, dated 19 Mar 98.
     Exhibit E.  Letter, AFBCMR, dated 6 Apr 98.
     Exhibit F.  Letter, BCMR Medical Consultant, dated 9 Apr 99.
     Exhibit G.  Letter, AFBCMR, dated 15 Apr 99.




                                   HENRY ROMO, JR.
                                   Panel Chair