RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-02615
            INDEX CODE:  111.02

            COUNSEL:  DAVID C. CORY

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be reinstated to active duty and be allowed to reenlist to obtain  at
least 20 years of service.

2.  He be provided supplemental promotion  consideration  to  the  grade  of
technical sergeant.

3.  The Enlisted Performance Report (EPR) rendered for  the  period  22  May
1995 through 21 May 1996 be corrected to remove certain derogatory  comments
concerning his financial situation.

4.  The Letter of Counseling (LOC) dated 5 April 1995 be  removed  from  his
records.

5.  The Letter of Reprimand (LOR) dated 15 May  1996  be  removed  from  his
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Counsel for the applicant states that:

1.  The Discharge Board made  legally  flawed  and  factually  unsupportable
findings.

2.  The Separation Authority did not  state  his  reasons  for  denying  the
Discharge Board’s recommendation that applicant  be  granted  probation  and
rehabilitation (P&R).

3.  Two comments in the contested EPR stating that  applicant’s  failure  to
pay personal debts displayed financial irresponsibility; and  applicant  has
been inconsistent in managing his  financial  obligations,  resulting  in  a
lower rating, are inaccurate and factually unsupportable allegations.

4. The LOC and the LOR are inaccurate and factually unsupportable.

Applicant's submission with attachments, is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 21 January 1981.

EPR profile since 1991 reflects the following:

      PERIOD ENDING                EVALUATION OF POTENTIAL

        14 May 91                        4
         3 Nov 91                        5
         3 Nov 92                        4
        21 May 93                        5
        21 May 94                        5
        21 May 95                        2 (downgraded from
                                                  a 3 by the
                                                  commander)
       *21 May 96                        2

      *Contested Report

On 22 August 1996, applicant was notified by his commander that  involuntary
discharge action had been initiated against him for  pattern  of  misconduct
(Conduct Prejudicial  to  Good  Order  and  Discipline).   The  reasons  for
discharge were:

    (1) Between on or about 1 September 1994 and on or about     13  January
1995 he admitted he used a government issued credit  card  for  purchase  of
personal items in violation  of  Air  Force  policy.   For  this  action  he
received a LOR on 24 January 1995.

    (2) Between on or about 21 February 1995 and or about       21  February
1995 and on or about 24 February 1995 he made a check to AAFES in the  about
of $300.00. and did thereafter  dishonorably  fail  to  maintain  sufficient
funds.  For this action he received a LOC on 5 April 1995.

    (3) On or about 4 May 1995 he attempted to solicit  the  services  of  a
prostitute which was in violation of Article 80, while in  a  public  street
in the front seat of his vehicle willfully and wrongfully exposed his  penis
in an indecent matter to the public view, which is in violation  of  Article
134.  For these  two  offenses  he  received  an  Article  15  with  imposed
punishment of reduction to the grade of sergeant (E-4), suspended  until  14
January 1996, at which time it was remitted without  further  action  unless
sooner vacated and 45 days extra duty.

    (4) On or about 1 October 1995 and on or about 15 October 1995  he  made
a check to FM Services Corporation, in payment  of  $100.00  and  thereafter
dishonorably failed to  maintain  sufficient  funds.   For  this  action  he
received a LOR and an Unfavorable Information File (UIF) was established  on
15 May 1996.

Applicant exercised his right to request a Discharge  Board  which  convened
on 20 November 1996.  Applicant was represented by military counsel.

The Discharge Board recommended that applicant be  separated  from  the  Air
Force with a general discharge with P&R.  The case was reviewed by the  base
legal office and was found legally sufficient to support discharge.   On  14
March 1997, the discharge authority  reviewed  the  case  and  directed  the
applicant  be  given  an  under  honorable  conditions  (general)  discharge
without P&R.  He served 16  years  2  months  and  1  day  of  total  active
military service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military  Personnel  Management  Specialist,  AFPC/DPPRS,  reviewed  the
application and states that there is a possible  irregularity  in  that  the
discharge authority failed to state why P&R was not  approved.   They  state
that nevertheless, had his case been referred to a court-martial,  applicant
would have been charged with soliciting the services  of  a  prostitute  and
indecent exposure.  They note that the Manual for  Court-Martial  authorizes
a  punitive  discharge  for  either  of  these  offenses.    It   would   be
inconsistent with the maintenance of good order  and  discipline  to  either
retain or grant P&R to a military member who has not  only  failed  to  meet
standards but has in the past refused to cooperate with his unit in his  own
rehabilitation.   They  further  state  that  the  discharge  complies  with
directives in effect at the time of his  discharge.   The  records  indicate
member’s military service was reviewed and  appropriate  action  was  taken.
Therefore, even though the applicant did identify a specific  error  in  the
discharge processing, they recommend denial of applicant’s request.

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

The Chief, Field Activities Division, AFPC/DPSF,  reviewed  the  application
and states that on 24  January  1995,  the  applicant  received  a  LOR  for
personal use of a government issued credit card.  They state applicant  came
forward and admitted this when he noticed articles  appearing  in  the  base
newspaper stating  personal  use  of  the  card  was  not  authorized.   The
applicant stated he  was  not  aware  personal  use  of  the  card  was  not
authorized until this point.  On 5 April 1995, applicant receive a  LOC  for
failure to maintain sufficient funds for checks written.

On 18 July 1995, applicant received an Article 15 for attempting to  solicit
the  services  of  a  prostitute  and  wrongfully  exposing  himself.    The
commander imposed a suspended  reduction  to  the  grade  of  E-4  until  14
January 1996 and 45 days extra duty.  Applicant rebutted the Article 15  via
memorandum (undated).

On 15 May 1996, a LOR was administered to applicant for failure to  maintain
sufficient funds for checks written.  He acknowledged receipt the  same  day
and did not provide a rebuttal.  The reprimand  was  used  to  establish  an
Unfavorable Information File (UIF).

They further state that  they  are  not  in  the  business  of  assessing  a
commander’s decision-making authority when assigning administrative  actions
to  subordinates.   They  state,  imposing  punishment   and   administering
counselings and reprimands falls within a commander’s  scope  of  authority.
However,  the  applicant  did  not  provide  documentation  indicating   the
censures were unjust or in  error.   Therefore,  they  recommend  denial  of
applicant’s request.

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

The Chief, Appeals and SSB Branch, AFPC/DPPPA, reviewed the application  and
states that to effectively challenge an EPR, it is necessary  to  hear  from
all the members of the rating chain, not only  for  support,  but  also  for
clarification and explanation.  Also, in the  absence  of  information  from
evaluators,  official  substantiation  of  error  or  injustice   from   the
Inspector General (IG) or Social Actions is appropriate,  but  not  provided
in this case.  They also point out the comments on  the  contested  EPR  are
factual.  Although counsel claims the applicant’s financial record  was  one
of honor and responsibility during the contested reporting period,  they  do
not agree.  Therefore, they recommend denial of applicant’s request.

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

The Staff Judge Advocate, AFPC/JA, reviewed the application and states  that
the evidence in the case file reveals  that  applicant’s  discharge  process
was replete with errors.  Nevertheless,  despite  the  sloppy  charging  and
processing, for the reasons discussed, they are  of  the  opinion  that  the
discharge is legally sufficient and that applicant’s  discharge  should  not
be overturned.

They state, while they do not concur in applicant’s legal  analysis  of  the
use of the  term  “dishonorable”  in  an  administrative  setting,  they  do
believe that he correctly alleges that the second basis for discharge  cited
in his case was factually in error and  legally  insufficient.   They  point
out that first, there never was a $300.00 check as charged in the  discharge
notification – there were two $150.00 checks.  Second, neither  of  the  two
dishonored checks  was  apparently  written  by  applicant  –  the  evidence
indicates they were written by his wife.  Thus, that  particular  basis  for
discharge was not factually correct, and  the  finding  by  the  board  that
applicant committed the act was legally insufficient.

They state that looking at each of the other basis for discharge,  they  are
of the opinion that the findings of the board are correct in fact and law.

They state that they are unable to find  any  factual  or  legal  merit  for
applicant’s claim that the referral EPR for  the  period  beginning  22  May
1995  and  ending  21  May  1996  “contains  two  inaccurate  and  factually
unsupportable allegations.”  Applicant specifically believes  the  comments:
“Applicant’s   failure   to   pay   personal   debts   displayed   financial
irresponsibility,” and “Applicant has  been  inconsistent  in  managing  his
financial obligations, resulting in a lower rating” were  inaccurate.   They
disagree.  They state that it is undisputed that during  the  rating  period
applicant wrote two checks to his debt consolidation agency  which  bounced.
They state that it is irrelevant  whether  that  agency  complained;  it  is
irrelevant whether applicant ultimately made good  on  those  checks.   They
point out that all that is relevant is that applicant  admits  to  making  a
conscious decision not to maintain sufficient funds to cover those checks.

They further state that, in light of  the  overwhelming  evidence  of  moral
and financial misconduct by applicant, they are  of  the  opinion  that  the
board’s findings on the first, third, and fourth basis  for  discharge  were
correct.  They are further convinced that  the  decision  to  discharge  the
applicant  was  supported  by  the  evidence,  and   that   the   separation
authority’s  decision  to  deny  P&R  was  appropriate.    Therefore,   they
recommend  that  applicant’s  request  to  be  reinstated,  reenlisted,   be
provided supplemental promotion consideration, and  that  his  last  EPR  be
removed from his records be denied as unsupported by the records before  the
Board.  However, they do recommend that the  Board  provide  applicant  some
relief  by  directing  that  the  findings  of  the  discharge  board   that
applicant:  “(did) between on or about     21 February 1995 and on or  about
24 February 1995 make a check to AAFES in the amount  of  $300.00,  and  did
thereafter dishonorably fail to maintain sufficient funds” be stricken  from
his records.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel for applicant reviewed the Air  Force  evaluations  and  states  the
following:

    “1.  Memorandum from HQ AFPC/JA, dated 24 February 1999.  That  advisory
is only correct insofar as it acknowledges that "The evidence  in  the  case
file reveals that applicant's discharge process was  replete  with  errors,"
and that the BCMR should direct the finding about the alleged $300.00  check
be stricken from his records.  Other  than  those  points,  the  HQ  AFPC/JA
advisory  is  a  shameful  example  of  superficial  and  incomplete   legal
"analysis." I urge the BCMR to seek an advisory opinion from  an  Air  Staff
level legal office, such as AFLSA/JAJM or the General Counsel's  Office.   I
would point out that the HQ AFPC/JA opinion cited  absolutely  no  authority
(such as regulations, statutes or case law) to support its conclusions  that
the applicant's discharge was legally sufficient.  Please note that  in  the
applicant's application, extensive case law  was  provided  to  support  the
applicant's  case.   Even  though   the   applicant's   discharge   was   an
administrative action, that case law is  applicable  because  the  applicant
has been accused both by the discharge process as well as  in  HQ  AFPC/JA's
advisory opinion of  criminal  misconduct,  and  thus  case  law  should  be
consulted to understand the meaning of the terms  used  in  the  allegations
(such as "dishonorable" and whether certain conduct is punishable.)   Please
note that HQ AFPC/JA's  advisory  opinion  did  not  contain  ANY  case  law
whatsoever.  Instead, it simply dismissed out of hand the  applicant's  case
law, without any attempt  whatsoever  to  examine  or  distinguish  it.   HQ
AFPC/JA simply says they "do not concur in  applicant's  legal  analysis  of
the use of the term  "dishonorable"  in  an  administrative  setting."  They
offer nothing as support of why they do not concur.   HQ  AFPC/JA  has  done
nothing more than offer its opinion, with nothing to back up  that  opinion.
From their perspective, the applicant  deserved  to  be  discharged,  simply
because they think so.

HQ AFPC/JA's advisory is blatantly one-sided.   Its  efforts  to  paint  the
respondent in as bad a light as possible is demonstrated when it  stated  in
footnote 1 on page 3 that, "While we  do  not  contend  that  applicant  was
personally responsible for the checks written on his joint  account  by  his
spouse, we do find that applicant was aware  of  those  checks  through  the
notification system in place at AAFES and within his squadron." What is  the
point of that gratuitous  and  irrelevant  statement  when  HQ  AFPC/JA  has
already recommended that the BCMR throw  out  that  allegation  because  the
respondent's wife wrote the checks?  Of  course,  the  applicant  eventually
learned of his wife's bad checks!  But that was  after  the  fact!   And  as
soon as he did, he acted honorably by making restitution.  What more can  be
expected of a service member?  It is simply outrageous that  the  government
acts as if the applicant can "control" his dependents in this  fashion,  and
that there is the veiled suggestion of fault because the  applicant  learned
of his wife's bounced checks AFTER THE FACT.

As far as HQ AFPC/JA's other conclusions, they failed  to  offer  any  legal
authority to counter the extensive case law  provided  in  the  application.
This  is  completely  unacceptable  because  HQ  AFPC/JA  characterized  the
applicant's conduct as "criminal" conduct (page 3,  last  paragraph).   Thus
it is clear HQ AFPC/JA wants to have its cake and eat it  too  in  terms  of
arguing that the applicant committed crimes, but  refusing  to  provide  any
legal support for its analysis.  I strongly urge  the  BCMR  to  resist  the
temptation to simply "adopt" the advisory  opinion  as  the  "gospel"  truth
simply because it was authored by an Air Force JAG.  The BCMR's role  is  to
be an impartial, justice-seeking body acting on behalf of the  Secretary  of
the Air Force.  The BCMR's job  is  not  simply  to  rubber-stamp  what  the
government says.  Otherwise, the BCMR fails to serve as  a  safety-check  on
government's errors and injustices.

In addition, HQ AFPC/JA cavalierly brushed aside the requirement of AFI  36-
3208, paragraph 7.14 that the separation authority MUST  state  his  reasons
for  denying  the  discharge  board's  recommendation  for   Probation   and
Rehabilitation (P&R).  Without citing any  authority  for  its  opinion,  HQ
AFPC/JA had the audacity to state, "The  separation  authority's  obligation
to state the reason for denial of P&R is nothing more than a convenience  to
reviewers."  CONVENIENCE TO REVIEWERS?!  Doesn't it occur to them  that  the
BCMR is such a reviewer and there should be a  presumption  that  the  AFI's
requirement is there to  enable  appropriate  reviewers  to  make  sure  the
separation authority acted with proper reasons and motives?  The reason  for
the  requirement  is  to  hold  the  separation  authority  accountable  for
explaining his  decision  to  reject  the  administrative  board's  explicit
recommendation that the applicant be given a SECOND CHANCE via P&R.  When  a
separation authority fails  to  give  a  reason,  there  should  not  be  an
assumption that the particular separation authority gave  the  decision  the
careful  consideration  it  required  and  that  the  separation   authority
considered the P&R provisions in the AFI.  All the P&R program  does  is  to
give the applicant a probationary second chance.  If he commits any  further
misconduct, he is automatically discharged.  Given the  applicant's  lengthy
career (16 years), being granted P&R is not an  unreasonable  request.   The
separation authority should be expected to follow all the rules just  as  he
apparently expects the applicant to do so.  HQ  AFPC/JA's  opinion  suggests
that the Air Force doesn't REALLY have to follow  its  own  instruction  all
the time, and that when the Air Force doesn't follow  its  own  rules,  that
failure isn't important.  On the other  hand,  HQ  AFPC/JA  also  apparently
believes that when a servicemember errs, throw the book  at  him.   Have  no
mercy.  Hold him accountable not only to the letter of  the  law,  but  even
more than the letter of the law.  In effect, make up the law when  it  suits
your purpose by simply declaring something to be so, but  without  providing
any legal authority for your opinion.  That is  what  HQ  AFPC/JA's  opinion
does.   Nowhere  in  its  advisory  opinion  does  HQ  AFPC/JA  provide  any
authority for its opinion.  Therefore, the BCMR must hold the Air  Force  to
the same standard it expects of  applicants.   The  applicant  has  met  his
burden of proof, and the advisory opinion fails  to  rebut  the  applicant's
case.  The applicant's discharge should  be  overturned  and  he  should  be
restored to active duty, with all other appropriate relief  consistent  with
that decision.  Anything less, in light of the legally unsupported  advisory
opinion, would be nothing  more  than  a  rubber  stamp  of  the  government
position, and would be grossly unfair and unjust.

Furthermore, just following HQ AFPC/JA's sole recommendation of  relief  (to
throw out the allegation on the  $300  check)  should  result  in  the  BCMR
throwing out the entire discharge.  Why?  Because the $300 check  allegation
was such a vital prong of the government's case against the  applicant.   If
the discharge board had known what the law actually required  of  them,  the
board should have thrown out both  the  second  and  fourth  allegation,  as
explained in the applicant's initial memorandum.  The government should  not
be permitted to repair its  case  after  the  fact  by  essentially  arguing
"harmless error."  Why is it acceptable that HQ AFPC/JA  concedes  that  the
applicant's discharge process was "replete  with  errors,”  yet  still  find
that those errors are acceptable?  We are dealing with the life  and  career
of a servicemember who served his country for over 16 years, nearly  all  of
it in a highly commendable fashion.  Yes, he made some  mistakes.   But  why
is the Air Force allowed to handle  his  case  in  a  manner  "replete  with
errors"?  It is outrageous.  If the author  of  the  HQ  AFPC/JA's  advisory
opinion  was  facing  adverse  administrative  action,  and  the  government
handled his case in a fashion "replete with errors,"  would  he  think  that
was acceptable?  Of course not.

The BCMR, in protecting the rights of servicemembers, should  recognize  how
unfair it is that  the  government  be  allowed  to  express  its  "opinion"
without having to support it by citing  any  law,  regulation,  instruction,
caselaw or other precedent for its opinions.  I respectfully  ask  that  the
BCMR do the right thing by reinstating the applicant.  Don't simply  rubber-
stamp the government's position.  Don't accept it at face value  because  it
is nothing more than the unsupported opinion of its author.  The fact it  is
printed on the letterhead of the Air Force should NOT give it some  aura  of
validity when in fact the substance of the advisory opinion is  without  any
legal authority to support it.  On the other hand, please go  back  and  re-
read  the  applicant's  initial  memorandum;  examine  the  extensive  legal
authority cited therein.  Then compare it to  the  government's  superficial
"opinions."

    2.  Memorandum from HQ AFPC/DPPPA, dated 21 January 1999.  The  advisory
opinion  addressed  only  the  EPR.   That  advisory  opinion  is   entirely
conclusory.  It is so brief and superficial that it  is  insulting.   Again,
the applicant has met his burden of  proof,  as  clearly  explained  in  the
initial memorandum.  The BCMR should not accept  such  superficial  "advice"
at face value.  I urge  the  BCMR  to  carefully  consider  the  applicant's
memorandum on the  issue  of  the  checks.   That  memorandum  provides  the
factual and legal authority to meet the applicant's burden of proof  and  to
rebut the government's unsupported advisory opinion.

    3.  Memorandum from HO AFPC/DPSF, dated 8 January  1999.  This  advisory
opinion is even more superficial than the others.  In a nutshell, Colonel B-
--, its author, believes that letters  of  counseling  and  reprimand  "only
require a commander's belief  that  an  offense  occurred."   What  kind  of
analysis is that?   What's  the  legal  basis  for  that  statement?   If  a
commander believed something which is, in reality, false, does the fact  the
commander subjectively believes it make it true?   Of  course  not.   Please
consider  the  applicant's  initial   application   and   reach   your   own
conclusions.  Don't rubber-stamp HQ AFPC/DPSF's superficial opinion!   As  a
further point which shows how absurd Colonel B---'s advisory  opinion  truly
is, please consider her statement, "We are not in the business of  assessing
a  commander's  decision-making  authority  when  assigning   administrative
actions to subordinates."  Is she kidding?  What  if  a  commander  is  just
flat-out wrong?  If it's not her office's business,  then  the  BCMR  should
not be relying on her "advice," and  the  BCMR  should  obtain  an  advisory
opinion from a qualified authority.  The BCMR's business  is  to  make  sure
that  commander's  "decision-making"  authority  is  factually  and  legally
supported and that the servicemember has not suffered any injustice  by  the
abuse of a commander's discretion.  As just  one  example,  please  remember
the large number of BCMR cases a  few  years  ago  involving  administrative
action taken against African-American officers who  were  refused  admission
to Officers Clubs back in the World War  II  era  simply  because  of  their
race.  In those cases, the commanders who issued the administrative  actions
apparently   believed   the   African-American   officers    deserved    the
administrative action they received for attempting to enter the clubs.   Did
the BCMR defer to  those  commanders'  subjective,  personal  opinions?   Of
course not!  If one follows Colonel B---'s line of thinking, commanders  can
do whatever they want when taking administrative action.   That  is  grossly
wrong and unjust!  HQ AFPC/JA has already acknowledged that there  are  many
errors in the processing of this applicant's case, including,  as  just  one
example, the legally insufficient  allegation  about  the  nonexistent  $300
check.  Colonel Bell of HQ AFPC/DPSF obviously  did  not  see  HQ  AFPC/JA's
advisory opinion.

     4.   Memorandum  from  HQ  AFPC/DPPRS,  dated  5  October   1999.    HQ
AFPC/DPPRS's advisory opinion is also devoid of any  true  analysis  of  the
applicant's application and memorandum.   It  is  so  conclusory  as  to  be
ridiculous.  The gist of that advisory opinion is that the applicant  should
be grateful he wasn't court-martialed.  That opinion is  irrelevant  because
the government cannot now, after the fact, in effect compare  the  discharge
board's recommendation for P&R to a court-martial and the possibility  of  a
punitive discharge.  The fact is that the  applicant  received  Article  15,
UCMJ, punishment for the incident in question, and  the  commander  involved
testified at the board  (see  transcript  page  26)  that  it  was  not  his
intention to discharge the applicant after the Article 15.  In other  words,
the commander did  not  believe  it  was  a  career-ending  event.   For  HQ
AFPC/DPPRS to now argue  the  applicant  should  be  discharged  because  he
theoretically COULD have been court-martialed is irrelevant and  misses  the
points raised in the applicant's  application.   It  also  appears  that  HQ
AFPC/DPPRS did not read HQ  AFPC/JA's  advisory  opinion  that  acknowledged
that there were many errors in the processing of the case.

    5.  Conclusion:  The applicant served over 16 years on active duty  with
the Air Force.  The many positive aspects of his record, even when  measured
against his mistakes, show he is a person worthy of  being  given  a  second
chance (even if just by way of the P&R program.) That is what the  discharge
board said with its recommendation that he be granted P&R.  Furthermore,  if
the discharge board had been properly advised on the law,  it  should  never
have found that the applicant had committed  allegations  2  and  4  of  the
statement  of  reasons.   Consequently,  the  findings  of  the  board   are
factually and legally insufficient, and the applicant should be granted  the
relief as stated in his application and supporting memorandum.  I  urge  the
BCMR not to simply "adopt" the four advisory  opinions  as  "gospel"  truth.
Those four opinions are cursory, conclusory, and  unsupported  by  any  law,
regulation,  caselaw  or  other  precedent  that  counters  the  applicant's
memorandum.  I urge the BCMR to recognize that the  applicant  has  met  his
burden of proof.  The BCMR should hold the government to  a  basic  standard
of following the law and its own regulations.  The government has  not  done
so, and the applicant should not be forced to forfeit 16  years  of  service
and his accrued pension because the government is unwilling  to  follow  the
law.  The applicant has suffered  a  great  injustice  in  the  way  he  was
wrongfully discharged.  He has now  met  his  burden  of  proof.   The  BCMR
should recognize its duty is to protect not just the  government,  but  also
the rights of individual  servicemembers.   The  applicant  deserves  to  be
given a second chance.  Again, please  take  a  close  look  at  the  entire
record.  Don't be satisfied with the four advisory opinions you have.   They
are so cursory as to be insulting to the  intelligence  of  readers.   Don’t
compound the injustice  by  blinding  "adopting"  them  as  the  BCMR's  own
analysis, which instead should be independent, fair and  impartial.   Please
grant the applicant the full relief he is requesting.”

Counsel's complete response is attached at Exhibit H.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies provided by existing  law  or
regulations.

2.    The application was timely filed.

3.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence  of   probable   error   or   injustice   warranting   applicant’s
reinstatement in the Air Force and voidance of the contested EPRs.  In  this
respect, we note the following:

      a.    As stated by the Staff Judge Advocate, in their advisory  of  24
February 1999, the applicant’s discharge process was  replete  with  errors.
The offense of writing a dishonored $300.00 check, in which he was found  to
have committed, was not factually correct.  In addition, we  note  that  the
discharge board recommended that the  applicant  be  granted  probation  and
rehabilitation (P&R).  The separation authority denied P&R; however, he  did
not state the reasons for denying P&R,  which  is  required  by  regulation.
The other offenses, with the exception  of  the  applicant’s  attempting  to
solicit the services of a prostitute, concern misuse of a government  credit
card and failure to maintain sufficient funds for a $100.00 check.  We  note
that when he found out that he was not authorized  to  used  the  government
credit card for purchase of personal items, he notified his superiors.   The
other offense  concerned  a  $100  check,  in  which  it  appears  that  the
applicant notified the corporation concerning the check  and  informed  them
that he had  unexpected  car  problems.   Based  on  the  above,  we  cannot
conclusively determine  whether  or  not  the  discharge  board  would  have
recommended that the applicant be retained.  We do know,  however,  that  he
has been deprived of his right to have his  case  considered  on  a  factual
basis.  In addition, it appears that the applicant was not informed  of  his
entitlement to apply for lengthy service probation.  In view of  the  errors
committed during the  discharge  process,  we  believe  that  the  discharge
proceedings are fatally  flawed  and  should  be  removed  from  applicant’s
record, and he should be reinstated into the Air Force.

       b.     After  reviewing  the  circumstances  surrounding  applicant’s
financial problems,  we  also  believe  that  the  overall  ratings  on  his
performance reports closing 21 May 1995 and 21 May 1996, are  unduly  harsh.
The applicant notified his superiors concerning his problems and it  appears
that he took action to resolve these  problems.   We  note,  too,  that  the
overall comments on these reports do not support the  ratings  he  received.
Therefore, we recommend these reports be declared void and removed from  his
records.  Furthermore, we recommend that applicant be provided  supplemental
promotion consideration to the grade of technical  sergeant  beginning  with
the 97E6 cycle.

4.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of probable error or injustice in regard  to  the  contested  LOC,
LOR and the Article 15.  After reviewing the evidence of record, we are  not
persuaded that the actions taken against the applicant constituted an  abuse
of discretion on the part of his commander.  Nor do  we  believe  that  they
were either in error or unjust given the nature of the offense committed.

5.    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 RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that:

      a.    The discharge  proceedings  under  AFI  36-3208,  dated       21
March 1997, be declared void and removed from his records.


      b.    The Enlisted Performance Reports, AF  Forms  910,  rendered  for
the periods 22 May 1994 through 21 May 1995 and 22 May 1995 through  21  May
1996, be declared void and removed from his records.

      c.    He was not discharged, under honorable conditions,  on        21
March 1997, but on that date he was continued on  active  duty  and  ordered
permanent change of station to his home of record/home of selection  pending
further orders.

      d.    On 2 February 1998, he was honorably  discharged  and  on      3
February 1998, he reenlisted in the Regular Air Force for a period  of  four
years.

It  is  further  recommended  that  applicant   be   provided   supplemental
consideration for promotion to the  grade  of  technical  sergeant  for  all
appropriate cycles beginning with cycle 97E6.

If AFPC discovers any adverse factors during or subsequent  to  supplemental
consideration that are separate and  apart,  and  unrelated  to  the  issues
involved in  this  application,  that  would  have  rendered  the  applicant
ineligible for the  promotion,  such  information  will  be  documented  and
presented to the  board  for  a  final  determination  on  the  individual's
qualification for the promotion.

If  supplemental  promotion  consideration  results  in  the  selection  for
promotion to the higher grade, immediately after such promotion the  records
shall be corrected to show that applicant was promoted to the  higher  grade
on the date of rank established  by  the  supplemental  promotion  and  that
applicant is entitled to all pay, allowances, and benefits of such grade  as
of that date.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 29 July 1999, under the provisions of AFI   36-2603:


                  Mr. Henry Romo, Jr., Panel Chair
                  Mrs. Margaret A. Zook, Member
                  Mr. Gregory H. Petkoff, Member
                  Ms. Phyllis L. Spence, Examiner (without vote)

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 Sep 98.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRS, dated 5 Oct 98.
   Exhibit D.  Letter, AFPC/DPSF, dated 8 Jan 99.
   Exhibit E.  Letter, AFPC/DPPPA, dated 21 Jan 99.
   Exhibit F.  Letter, AFPC/JA, dated 24 Feb 99.
   Exhibit G.  Letter, AFBCMR, dated 11 Nov 1993
   Exhibit H.  Counsel's Response, dated 6 May 99.




                                   HENRY ROMO, JR.
                                   Panel Chair




AFBCMR 98-02615
INDEX CODE:  111.02




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the authority
of Section 1552, Title 10, United States Code (70A Stat 116), it is
directed that:

      The pertinent military records of the Department of the Air
Force relating to APPLICANT be corrected to show that:

              a.  The discharge proceedings under AFI 36-3208, dated
21 March 1997, be and hereby are, declared void and removed from his
records.

              b.  The Enlisted Performance Reports, AF Forms 910,
rendered for the periods 22 May 1994 through 21 May 1995 and 22 May
1995 through 21 May 1996, be, and hereby are, declared void and
removed from his records.

              c.  He was not discharged under honorable conditions on
21 March 1997, but on that date he was continued on active duty and
ordered permanent change of station to his home of record/home of
selection pending further orders.

              d.  On 2 February 1998, he was honorably discharged and
on 3 February 1998, he reenlisted in the Regular Air Force for a
period of four years.

      It is further directed that applicant be provided supplemental
consideration for promotion to the grade of technical sergeant for all
appropriate cycles beginning with cycle 97E6.

      If AFPC discovers any adverse factors during or subsequent to
supplemental consideration that are separate and apart, and unrelated
to the issues involved in this application, that would have rendered
the applicant ineligible for the promotion, such information will be
documented and presented to the board for a final determination on the
individual's qualification for the promotion.

      If supplemental promotion consideration results in the selection
for promotion to the higher grade, immediately after such promotion
the records shall be corrected to show that applicant was promoted to
the higher grade on the date of rank established by the supplemental
promotion and that applicant is entitled to all pay, allowances, and
benefits of such grade as of that date.





                             JOE G. LINEBERGER
                             Director
                             Air Force Review Boards Agency