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.

3.  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 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