RECORD OF PROCEEDINGS
      AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  98-01438
                 INDEX CODE: 110.03

                 COUNSEL:  HENRY MAYNARD, SR

                 HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

He be reinstated to Active Guard/Reserve (AGR) status to  include  back  pay
and benefits and, until such time, he be given separation pay.

APPLICANT CONTENDS THAT:

1.    He was not given the required  counseling  pursuant  to  AFI  36-3208,
Section 5.47.7 and 5.2; ANGI 36-101, Section  6.5.2.1,  prior  to  the  unit
initiating separation.

2.    His discharge from AGR status on 13 May 1998 constituted  a  violation
of his enlistment contract.

3.    The discharge board, which heard the  case,  was  improperly  convened
because there was no  evidence  that  a  prior  order  convening  a  hearing
(Special Order           ) had been revoked.

4.    The failure to seek a legal review by the state  headquarters  on  the
discharge recommendation was a critical error.

5.    The board was  not  properly  convened  under  the  authority  of  the
Secretary of the Air Force pursuant to AFI 36-3208, Section 8.2 and AFI  36-
3209, Section 4.14.1.

6.    The discharge was not voluntary and the DD Form 214  did  not  list  a
punitive/misconduct discharge, therefore, he is entitled to separation pay.

Applicant's complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air  Force  on  26  December  1979  for  a
period of 4 years.  On 21 April 1990, he  transferred  to  the  District  of
Columbia Air National Guard (DC ANG) in the grade of staff sergeant (SSgt).

On 29 September 1990, applicant was  ordered  to  full-time  National  Guard
Duty in Active Guard/Reserve (AGR) status in the grade of SSgt.

On 15 August 1997, applicant was  notified  of  his  commander's  intent  to
recommend him for an Other Than  Honorable  Conditions  (General)  discharge
from the DC ANG and  the  United  States  Air  Force  for  Misconduct.   The
commander’s  reasons  were:  the  applicant’s  wrongful   appropriation   of
unauthorized cash advances in the amount  of  $1,100.00,  having  an  unpaid
balance of $6,204.77 on his US Government American Express card, failure  to
pay his debt (last three payments of $1,302.29 on 5 May 1997,  $1,809.65  on
6 June 1997, and $2,184.80 on 30 June 1997 had all bounced) and his  failure
to obey lawful  orders  and  regulations  that  he  use  his  US  Government
American Express Card only for authorized, official travel expenses,  and  a
$133.50 deposit, that he was solely responsible for,  to  the      In-Flight
Services Fund was unaccounted for.  These actions, along with  the  previous
Letter of Reprimand for assault and  battery  against  his  spouse,  January
1993, Article 15 for American Express Card abuse, August 1996,  Previous  US
Government  Diner’s  Club  Card  abuse,  reflected  a  serious  pattern   of
misconduct.

On 15 August 1997, applicant acknowledged receipt of understanding  and  his
right (a) to be represented  by  military  counsel,  (b)  an  administrative
discharge board hearing, (c) to submit statements in  his  own  behalf,  and
(d) waive the above rights.  He also indicates  that  military  counsel  had
been made available to him and he had been notified of his right  to  employ
civilian counsel at no cost to the government, if he desired to do so.

A Board of Officers convened under AFI 36-3208  and  36-3209      at    AFB,
on 5 December 1997 and found applicant: (1) Did have an  unpaid  balance  of
$6,204.77 on his US Government American Express Card on 7 July 1997.  On  15
August 1997 the unpaid balance was $3,864.98.  (2) Did fail  to  pay  lawful
debts owed to American Express Card Company  by  paying  with  checks  which
were returned for insufficient funds on 5 May 1997,  6  June  1997,  and  30
June 1997.  (3) Did misuse/abuse his US Government American Express Card  in
an amount over $1,000 in violation of paragraph 34, 113 Wing Sup  1  to  AFI
65-104 (1 October 1996).  Cash advances were made in May and June  1997  not
in conflict with travel.  This was not disputed.  (4) Did fail to  eliminate
the overdue balance on his US Government American Express  Card  within  120
days in violation of paragraph 34, 113 Wing Sup 1 to AFI 65-104  (1  October
1996).  (5) Did not make a deposit in the amount of $133.50  for  the  201st
In-Flight Services Fund.  There was  not  a  preponderance  of  evidence  to
prove applicant failed to make the deposit.  (6) Did assault his wife on  or
about 3 January 1993.  (7) That these  findings  do  reflect  a  pattern  of
misconduct, as evidenced by an established pattern of failure  to  pay  just
debts and abuse/misuse of the US  Government  American  Express  Card.   The
board recommended that applicant be discharged with a General Discharge  and
not be offered a suspended discharge for a probationary period.

On 27 February 1998, applicant appealed the punishment.

On 16 April 1998,  the  Commanding  General,     ANG,  determined  that  the
administrative  separation  board’s  findings   and   recommendations   were
correct.  He approved and directed execution of the  board’s  recommendation
that applicant be discharged for acts constituting a pattern  of  misconduct
and would receive a General Discharge.  Applicant’s  request  for  probation
to acquire minimum retired pay eligibility was denied.

Applicant was honorably discharged on 12 May 1998, in the grade of TSgt,  in
accordance with ANGI 36-101, para 6.5,  Termination  of  AGR  Military  Duty
Tour. He served a total of 18 years, 5 months and 20 days of service and  17
years, 11 months and 9 days of total active service.

AIR FORCE EVALUATION:

The Chief, Utilization, ANG/DPU, reviewed this application and  states  that
they do not believe that the errors assigned by the  applicant  sufficiently
meet the standard of material error or injustice.   However,  the  focus  of
this case was misuse/abuse of the  official  government  credit  card.   The
board heard evidence of the applicant’s  pattern  for  misusing/abusing  his
government credit card.  This evidence clearly subjected  the  applicant  to
discharge for a pattern of misconduct.  Therefore, they recommend denial  of
applicant's request.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel reviewed the Air Force evaluation and submits a  six
page statement.  In summary counsel  states  that  they  ask  the  Board  to
review their petition with scrutiny and  judicial  termperance.   They  also
ask that you review closely their appeal of 27 February 1998 to General  ---
referencing their assignment of errors.  The fact that  the  Guard  took  so
long in processing this matter is because their only defense  was  to  delay
as long as possible.

Applicant's complete response, with attachments, is attached at Exhibit E.

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  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. Applicant’s contentions  are  duly
noted; however, we find  no  evidence  of  error  in  this  case  and  after
thoroughly reviewing the documentation that has been  submitted  in  support
of applicant’s appeal, we do not believe he has suffered from an  injustice.
 Applicant’s numerous contentions have  been  adequately  addressed  by  the
appropriate Air Force office and we are in  agreement  with  their  comments
and  recommendations  and  adopt  their  rationale  as  the  basis  for  our
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.  Therefore, in the absence of evidence to the contrary,  we  find
no basis to recommend granting the relief sought in this application.

4.    The applicant's case is adequately documented  and  it  has  not  been
shown that a personal appearance with or  without  counsel  will  materially
add to our understanding of the issue(s) involved.  Therefore,  the  request
for a hearing is not favorably considered.

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 30 November 1999, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Panel Chair
      Mr. Edward C. Koenig, Member
      Mr. Gregory W. Den Herder, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 15 May 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, ANG/DPPU, dated 7 Apr 99.
      Exhibit D. Letter, AFBCMR, dated 3 May 99.
      Exhibit E. Applicant’s Response, dated 20 May 99, w/atchs.





                             THOMAS S. MARKIEWICZ
                             Panel Chair