RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 97-03180
                 110.00  123.07  131.00
                 COUNSEL:  None

                 HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

He be returned to the grade of airman first class  (A1C)  and  his  DD
Form 214 reflect no lost time. [Applicant indicates  in  his  rebuttal
that he now realizes the highest grade he can receive is  airman---See
Exhibits D & G.]
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was unfairly treated because of his physical  disability,  Hispanic
heritage,  and  his  inability  to  have  known  all  his  rights  and
opportunities due to his short time in the military. He was not absent
without leave (AWOL) [the basis for the Article 15] because he  had  a
third amended order, dated 9 January 1997, that extended  his  TDY  at
Wilford Hall Medical Center (WHMC), Lackland AFB, for a total  of  176
days, and was given verbal  authorization  to  remain  TDY  after  his
medical evaluation board (MEB) was concluded.

His complete submission, which includes the third amended  TDY  order,
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 20  March  1996  in
the grade of airman. During the period in question, he was assigned to
the 2 SPS at Barksdale AFB.  On 6 September 1996, he was sent  TDY  to
WHMC for evaluation of an ankle  injured  on  29  May  1996  while  in
Security Police Technical School. On 20  November  1996,  an  informal
physical evaluation board (IPEB) determined that, because  of  chronic
left  ankle  pain  following  the  injury,  the  applicant  should  be
discharged with severance pay.

On 2 December 1996, the  Secretary  of  the  Air  Force,  through  the
Personnel Council (SAF/PC), directed that the applicant  be  separated
from active service for physical disability with severance pay.  As  a
result of  this  determination  of  unfitness,  the  applicant  became
ineligible for promotion.

On 9 January 1997, the USAF Security  Police  began  investigating  an
allegation made against the applicant that he was released  to  report
back to Barksdale in early December 1996, that he did not report  back
until 9 January 1997, and did not have authorization to stay at  WHMC.
[Records indicate that applicant’s medical evaluations were  completed
by 2 December 1996 and he was released from the doctor’s  care  on  17
December 1996. Further, he was issued a third amended TDY order, dated
9 January 1997---the day  he  returned  to  Barksdale---which  further
extended his TDY for a total of 176 days. All of the  amended  orders,
including the 9 January 1997 order,  were  included  in  the  Security
Police Report of Investigation (ROI); however,  the  report  does  not
reflect any reference to or investigation of this amended order.]

On 13 March 1997, the applicant was notified of his commander’s intent
to impose nonjudicial punishment on him for being AWOL from 2 December
1996 to 9 January 1997 in violation of Article 86, UCMJ. On  21  March
1997, after consulting with counsel, the applicant waived his right to
be  tried  by  court-martial  and  submitted   written   matters   for
consideration. On 21 March 1997, the applicant’s commander  determined
he had committed the offense cited and imposed  punishment  consisting
of a reduction to the grade of airman basic with a new  date  of  rank
(DOR) of 21 March 1997 and restriction to Barksdale for 14 days.   The
applicant did not appeal.

On  17  April  1997,  SAF/PC  found  the  applicant  did   not   serve
satisfactorily in any  higher  grade  than  airman  basic  within  the
meaning of Section 1212, Title 10, USC.

On 2 June 1997, he was honorably discharged in  the  grade  of  airman
basic for medical disability, with severance pay.  He served 1 year, 2
months and 13 days of active duty. The DD Form 214 reflects lost  time
from 2 December 1996 to 9 January 1997.

The remaining relevant facts and additional details pertaining to this
application, extracted from  the  applicant's  military  records,  the
applicant’s submission and the Security Police ROI  are  contained  in
the letter prepared by the appropriate office of the Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, AFLSA/JAJM, reviewed the appeal and explains  his
rationale for denying the applicant’s requests.

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

The Chief, Inquiries/AFBCMR Section,  HQ  AFPC/DPPPWB,  evaluated  the
appeal and stated that the Special Order P-014, dated 8 January  1997,
HQ  2nd  Support  Group,  Barksdale  AFB  purporting  to  promote  the
applicant to A1C effective and  with  a  DOR  of  20 January  1997  is
without basis for authority as the applicant had been  ineligible  for
promotion since 2 December 1996 when the SAF/PC found  him  unfit  and
directed his discharge.

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

The Senior Attorney-Advisor, HQ AFPC/JA, concurs with  AFLSA/JAJM  and
HQ AFPC/DPPPWB and recommends the application be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisories and points out that  nowhere  is
his amended TDY order addressed. The order wasn’t even  looked  at  by
his first sergeant and was not seen at his  Article  15  hearing.  The
only reason he accepted the Article 15  was  because  of  his  medical
condition. How could he be AWOL when he had written orders?  In a post
script, he adds he also knows  now  that  the  highest  grade  he  can
receive is Airman [emphasis added].

A copy of his complete rebuttal, with attachment, is at Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The  Staff  Judge  Advocate,  HQ  AFPC/JA,  reviewed  the  appeal  and
concludes there is factual support for relief. During the entire  time
the applicant was absent from his permanent duty station  (Barksdale),
he was on TDY orders (to WHMC)  authorizing  his  absence.   There  is
additional evidence that the purpose of  his  TDY  was  not  concluded
until some two weeks after his PEB on 2 December 1996,  and  that  the
applicant  had  medical  appointments  as  late  as  6  January  1997.
Furthermore, there is some evidence  that  applicant  made  legitimate
attempts to return to his duty station. A more thorough  investigation
might have refuted these facts (for example, confirming the  applicant
did not appear  at  the  last  two  medical  appointments  because  he
canceled them) but, as it exists, the  nonjudicial  punishment  action
rests on a paper trail with little or  no  actual  investigation.  The
problem with the  paper  trail  in  this  case  is  that,  with  newly
considered documentation, it now travels in  both  directions  and  no
longer provides a reasonable basis for command action. Therefore,  the
author agrees with AFPC/DPPPWB’s advisory  regarding  the  applicant’s
grade, and recommends the lost time be deleted from his records.

A copy of the complete additional evaluation is at Exhibit I.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A complete copy of the additional  evaluation  was  forwarded  to  the
applicant on 24 March 1999 for review and comment 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 timely filed.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice.  Since the applicant has
indicated he now realizes that the highest grade  he  can  receive  is
airman, his original request for the grade of airman first class is no
longer a matter requiring our consideration.  With respect to the lost
time, we agree with the Staff  Judge  Advocate’s  assertion  that  the
applicant was on TDY orders authorizing his absence during the  entire
time he was absent from  his  permanent  duty  station.  Further,  the
purpose of his TDY was not concluded until some two  weeks  after  his
PEB. He initially had medical appointments as late as 6 January  1997,
and some evidence implies he made legitimate attempts to return to his
duty station. As noted by the Staff Judge  Advocate,  the  nonjudicial
punishment action appears to rest on a paper trail with little  or  no
actual investigation and no longer provides  a  reasonable  basis  for
command action.  Therefore,  we  believe  the  Article  15  should  be
declared void and removed from his records, and that the  “lost  time”
indicated on his DD Form 214 should also be deleted.

_________________________________________________________________

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 punishment imposed  on  him,  under  the  provisions  of
Article 15, UCMJ, on 21 March 1997,  be  set  aside  and  all  rights,
privileges and  property  of  which  he  may  have  been  deprived  be
restored.

      b.  He  was  not  charged  with  lost  time  during  the  period
2 December 1996 to 9 January 1997.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 25 May 1999, under the provisions of AFI 36-2603:

                  Mrs. Barbara A. Westgate, Panel Chair
                  Ms. Ann L. Heidig, Member
                  Mr. Mike Novel, Member

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

   Exhibit A.  DD Form 149, dated 7 Oct 97, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 21 Nov 97.
   Exhibit D.  Letter, HQ AFPC/DPPPWB, dated 15 Jan 98, w/atch.
   Exhibit E.  Letter, HQ AFPC/JA, dated 21 Apr 98.
   Exhibit F.  Letter, AFBCMR, dated 4 May 98.
   Exhibit G.  Letter, Applicant, undated, w/atch.
   Exhibit H.  Letter, AFBCMR, dated 25 Aug 98.
   Exhibit I.  Letter, HQ AFPC/JA, dated 2 Feb 99.
   Exhibit J.  Letter, AFBCMR, dated 24 Mar 99.




                                   BARBARA A. WESTGATE
                                   Panel Chair




AFBCMR 97-03180




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 punishment imposed on him, under the provisions of
Article 15, UCMJ, on 21 March 1997, be, and hereby is, set aside and
all rights, privileges and property of which he may have been deprived
be restored.

           b.  He was not charged with lost time during the period
2 December 1996 to 9 January 1997.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency