RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-03834
            INDEX CODE:  110.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated in the Air Force or an upgrade of his general  (under
honorable conditions) discharge to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was having  marital  and  financial  problems  and  these  problems
contributed to his discharge.

He states that he never wanted out of the service, but was human, made
mistakes and was not given the chance to fix them.  He would  like  to
reenter the Air Force, if not he request  an  honorable  discharge  to
enlist into another branch of service.

In support of the appeal, applicant submits a personal  statement  and
other documentation.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from  the
applicant’s military records, are contained in the Brief  prepared  by
the Examiner for the Air Force Discharge Review Board (AFDRB) (Exhibit
C) and in the Air Force advisory opinion  (Exhibit  D).   Accordingly,
there is no need to recite these facts in this Record of Proceedings.

_________________________________________________________________

AIR FORCE EVALUATION:

Applicant’s request for an upgrade of  discharge  was  denied  by  the
AFDRB on 22 September 1998.  In accordance with policy, the  applicant
was forwarded to this Board for further consideration.

The Staff Judge Advocate, HQ AFPC/JA, also reviewed  this  application
and states that applicant served on active duty as an enlisted  member
for 5 years and 10 months.  He  also  had  eight  months  of  inactive
service through the Delayed Enlistment Program.  He was discharged  on
16 December 1993 pursuant to Air Force Regulation 39-1 0, paragraph 5-
46, for minor disciplinary infractions.  At the time of his discharge,
applicant's total service time was over six  years.   Under  both  the
regulations in effect at the, time, and current guidance, airmen  with
over six years of service are  entitled  to  administrative  discharge
board hearings.  Applicant was discharged by notification process  and
was not offered a discharge board hearing.  Apparently, his total time
of service was not considered.

A  clear  error  occurred  in  processing  applicant’s  administrative
discharge.  He was entitled to, but was not offered, an opportunity to
present his case at an administrative discharge board  hearing.   They
note that applicant never alleged being deprived of an  administrative
discharge board as an error or injustice; instead,  he  attacked  each
instance of his misconduct, on  the  merits.   As  a  result,  he  was
deprived  of  a  fundamental   administrative   due   process   right.
Accordingly, the text book solution to applicant’s situation would  be
to restore him to active duty and allow him to have his administrative
discharge board.  In this case, however,  other  factors  need  to  be
considered in order to determine the proper outcome.

The first is the fact that applicant has  requested  he  be  given  an
honorable discharge an alternative to reinstatement  on  active  duty.
Given his state of mind at  the  time  of  his  discharge,  manifested
through his own words in his written response to his discharge  action
(he had for five months “hated going to work” and  had  “developed  an
attitude that nothing mattered”)  they  believe  applicant’s  ultimate
discharge from the Air Force would be virtually inevitable, and likely
the final outcome, even if he were returned to active duty to face  an
administrative discharge board.  This circumstance, coupled  with  his
request for an honorable discharge, arguably provides a basis for  the
BCMR to substitute an honorable discharge for the general discharge he
received.  However, timeliness issues aside,  we  still  believe  that
reinstatement on active duty is the better  remedy  because  it  would
afford applicant the full range of options the error  denied  him,  to
include the right to a  board  hearing,  to  conditionally  waive  the
hearing contingent  upon  receiving  an  honorable  discharge,  or  to
unconditionally waive a hearing.

More importantly, however, although  an  error  was  made  in  denying
applicant a board hearing this application was not timely  filed  and,
under the unique circumstances of this case, we believe  it  would  be
proper  to  deny  the  application  on  that  basis.   Applicant   was
discharged in late 1993. He  filed  his  application  in  early  1998.
Although he claimed he did not discover any alleged error or injustice
until  mid  1996,  he   provided   no   information   concerning   the
circumstances surrounding this “discovery.”  It appears he listed  the
1996 date in block 11a on his DD Form 149 so  he  would  not  have  to
explain in block 11b why he had waited more than three years since the
circumstances of his claim arose.  In any event, his bases for  relief
listed in his application were clearly well known to him at  the  time
of his discharge, since they are mere excuses for his  misconduct  and
are only weakly mitigating.  By law, a  claim  must  be  filed  within
three years  of  the  date  of  discovery  of  the  alleged  error  or
injustice.  10 U.S.C. 1552(b).  Although applicant was on active  duty
when his alleged error or injustice arose, more than three years  have
passed prior  to  his  filing  for  relief,  and  he  has  offered  no
explanation for that delay.  Normally, to prevent application  of  the
statute of limitations, an applicant must either  show  that  the  Air
Force has concealed its acts with the result that  the  applicant  was
unaware of their existence or the applicant  must  show  that  it  was
inherently unknowable at the accrual date.  Welker v.  United  States,
752 F.2d 1577, 1580 (Fed. Cir.1985) cert. Denied, 474 U.S. 826 (1985).
 Here, applicant has done nether.  He had in his possession all of the
information and documentation necessary to pursue  his  claim  at  the
time of his discharge and at all times up until he finally  filed  his
application for relief in 1998.  The same cannot necessarily  be  said
for the government.  Prejudice to the government’s  case  often  grows
with the passage of time—records are lost, evidence and documents  are
destroyed,  memories   fade,   and   witnesses   become   unavailable.
Circumstances such as these justify the sanctions imposed by  statutes
of limitation.  While the BCMR can waive  the  three-year  requirement
when it finds such action to be in the interests  of  justice,  waiver
should be limited to situations to preclude an actual  injustice.   In
our opinion, the BCMR is not required  to  decide  this  case  on  the
merits, and on the grounds of untimeliness alone,  is  authorized  to,
and should, deny he relief requested.

Because over five years have passed since his discharge, they  believe
a full hearing on the merits, without prejudice to the government,  is
now impossible.  Their experience has been that with  the  passage  of
long  periods  of  time  between  the   incidents   giving   rise   to
administrative or other remedial actions, and the actions  themselves,
the ability of the Air Force to present all of the available, relevant
evidence is often compromised.  As alluded to above, the key witnesses
in this case have most certainly relocated and could well be hard,  if
not impossible, to find.  At a minimum, the available  witnesses  have
likely  forgotten  key  pieces  of  evidence.   Moreover,  documentary
evidence may well have been destroyed  or  misplaced.   All  of  these
factors inure only to the benefit of applicants,  who  may  then  take
greater license with their  version  of  the  events  leading  to  the
actions taken against them, and perhaps “rewrite history” in an effort
to attain the relief they seek.  Statutes of limitation  were  enacted
to prevent these situations from occurring, and to provide finality to
cases  that  might  otherwise  endlessly  continue,  at  the  whim  of
applicant’s seeking yet another forum in which to be heard.  For these
reasons, they believe this application should be denied because it  is
untimely.  Should the Board not deny the application  on  that  basis,
they recommend applicant be reinstated on active duty to afford him an
opportunity to present his case to an administrative discharge board.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 12 May 1999, a copy of the Air Force evaluation  was  forwarded  to
the applicant for review and response within  30  days.   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.

 Insufficient relevant evidence has been presented to demonstrate  the
existence of probable error or injustice warranting  reinstatement  of
the applicant on active duty  to  afford  him  an  opportunity  to  be
considered by an Administrative Discharge Board (ADB).   As  noted  by
the Staff Judge Advocate, the applicant was not offered an opportunity
to present his case to a discharge board hearing  and  they  recommend
that he be reinstated on active duty and afford him an opportunity  to
present his case to an ADB.  We do not agree.   In  this  respect,  we
note that in his response to  the  discharge  action  against  him  he
stated he hated going to work  and  had  developed  an  attitude  that
nothing matter.  Based on the disciplinary  infractions  committed  by
the applicant, it appears that  the  applicant  was  truthful  in  his
statement.  We note  that  the  applicant,  had  he  been  offered  an
hearing, would have been advised that he had a right to a hearing,  to
conditionally waive the hearing contingent upon receiving an honorable
discharge, or to unconditionally waive a hearing.  After reviewing the
evidence of record, which  includes  his  response  to  the  discharge
action, we believe that the applicant would have waive his right to  a
hearing contingent upon receiving an honorable discharge.  In view  of
our above determination, we conclude that the  failure  to  offer  the
applicant the opportunity to a ADB was  a  harmless  error.   If  this
Board were to reinstate the applicant and he was considered by a  ADB,
he could receive a less favorable discharge.  Therefore, we  recommend
approval of applicant’s alternative  request  to  have  his  discharge
upgraded to honorable.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that on 16 December  1993,
he was honorably  discharged  and  furnished  an  Honorable  Discharge
certificate.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 10 August 1999, under the provisions of  AFI  36-
2603:

            Mr. Benedict A. Kausal IV, Panel Chair
            Mr. Joseph A. Roj, Member
            Mr. John E. Pettit, Member

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

   Exhibit A.  DD Form 149, dated 19 March 1998, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  AFDRB brief, dated 22 September 1998, w/atchs.
   Exhibit D.  Letter, HQ AFPC/JA, dated 26 April 1999.
   Exhibit E.  Letter, SAF/MIBR, dated 12 May 1999.




                 BENEDICT A. KAUSAL IV
                 Panel Chair


AFBCMR 98-03834





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, ssn, be corrected to show that on 16
December 1993, he was honorably discharged and furnished an Honorable
Discharge certificate.





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency