RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-00215
            INDEX CODE:  110, 111.02

            COUNSEL:  None

            HEARING DESIRED:  No

APPLICANT REQUESTS THAT:

1.    The Senior Enlisted Performance Report (EPR)  rendered  for  the
period 1 Jan 95 through 1 Aug 95 be declared void and removed from his
records.

2.    He be retired from active duty,  effective  1 Feb  96,  with  an
honorable discharge.

APPLICANT CONTENDS THAT:

His discharge from the Air Force was inequitable, unfair,  and  unjust
due  to  the  gross  improprieties,   irregularities,   and   outright
illegalities practiced and endorsed by the xxxth  Commander,  the  XXX
Commander, and the XXX AFB, XXX, Judge Advocate General.  His  service
record,   quality   and   time-in-service,   rank,   and    mitigating
circumstances were disregarded.

Applicant’s principal contentions are as follows:

     1. The prejudice exercised in  the  investigation,  prosecution,
        intimidation, harassment, and pursuit of the applicant was an
        injustice.

     2. His commander downgraded his last EPR from a 5 to a  4  which
        effectively removed his chances for promotion.

     3. The XXX  Squadron  Commander  isolated,  harassed,  demeaned,
        degraded, and tormented the applicant while he was  temporary
        duty (TDY) to XXX AFB.  This was  done  for  the  purpose  of
        breaking his will to fight and his resistance.

     4. The XXX  AFB  Staff  Advocate’s  office  stole  his  and  his
        fiancee’s property against Air Force regulations and  Federal
        Law.

     5.  The  quality  and  length  of  his  military   service   was
        disregarded and the resulting discharge was inequitable.

     6. The XXX AFB Staff Judge Advocate repeatedly pushed a  Chapter
        4  option  to  prevent  having  to  go  to  trial,   provided
        substantial last minute discovery, denied the  witnesses  the
        applicant requested, allied with a XXX District Attorney  who
        would allegedly prosecute him if he was acquitted and did not
        notify his civilian attorney of the scheduled court date.

     7. The Air Force Office of Special Investigation (AFOSI) Special
        Agents intimated, threatened, and  coerced  witnesses,  using
        any  means  necessary  to  substantiate  their  case  against
        applicant.

      8.    His discharge was too harsh and was based on conduct  that
        was  mitigated  by  an  overall  good  service   record   and
        overriding external pressures.

Applicant’s complete submission is attached at Exhibit A.

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military  Service  Date  (TAFMSD)
was 15 Oct 75.

Applicant’s Airman Performance Report  (APR)/EPR  profile  since  1985
follows:

            PERIOD ENDING          OVERALL EVALUATION

             31 Oct 85                     9
             18 May 86                     9
             18 May 87                     9
             18 May 88                     9
             18 May 89                     9
             31 Jan 90                     4 (New rating system)
             31 Jan 91                     5
             15 Jun 91                     5
             15 Jun 92                     5
             31 Dec 93                     5
             31 Dec 94                     5
           *  1 Aug 95                     4

     *  Contested EPR.

On  11 Jul  95,  the  applicant  submitted  a  retirement  application
requesting an effective date of retirement of 1 Dec 95.   Per  Special
Order Number XXXXX, dated 9 Nov 95,  his  request  was  approved.   On
29 Nov 95, applicant’s  retirement  was  rescinded  by  Special  Order
#XXXXX due to “member pending administrative action.”

On 2 Nov 95, the applicant requested that the EPR closing 1 Aug 95  be
removed from his records.

On 20 Nov 95, the Evaluation Reports Appeal Board  (ERAB)  denied  the
applicant’s request.  The  board  was  not  convinced  by  applicant’s
documentation.

Applicant faced court-martial charges  of  wrongful  appropriation  of
government property.  Prior to court-martial, the applicant  submitted
a voluntary request to resign in  lieu  of  court-martial  proceedings
(Chapter 4).

On 23 Jan 96, the applicant requested that he be discharged  from  the
Air Force effective 12 Feb 96.  (There is no documentation on file  in
the applicant’s master personnel records regarding his resignation).

On 29 Jan 96, the applicant was discharged under the provision of  AFI
36-3208 (Triable By Court-Martial) with an under other than  honorable
conditions (UOTHC) discharge in the grade of master sergeant.  He  was
credited with 20 years, 3 months, and 15 days of active service.

On 9 Feb 99, applicant provided additional documents that he requested
be added to his appeal package (see Exhibit C).

AIR FORCE EVALUATION:

The Deputy Chief, Military Justice Division, AFLSA/JAJM, reviewed this
application and indicated that the property  the  applicant  complains
the Air Force wrongfully took was confiscated by the AFOSI during  the
course of the investigation since  the  items  were  suspected  to  be
government property.  The applicant was advised several years  ago  on
the correct procedures to follow in order to  file  a  claim  for  the
property he claims the Air Force wrongfully withheld  from  him.   The
claims office advised  the  applicant  that  he  must  show  proof  of
ownership before he would be reimbursed.  The applicant never filed  a
claim.

JAJM states that in court-martial proceedings, the decision to  submit
a Chapter 4 request rests solely  with  the  accused.   The  applicant
admits he was aware that if he submitted a Chapter 4, he could receive
a discharge characterized as UOTHC and that the discharge could result
in the loss  of  his  retirement  benefits.   The  applicant  had  the
opportunity to litigate his case in a trial by court-martial but chose
to submit his resignation.  The Chapter 4 is a  Personnel  action  and
JAJM does not have any records relating to it.  The  applicant  admits
that his own attorneys advised him to submit the  Chapter  4  request.
JAJM has no evidence or indication that the applicant was coerced into
submitting the Chapter 4 request.

The applicant asked to resign and now complains that  his  resignation
was accepted.  He complains he lost his retirement benefits.  When the
convening authority accepted the Chapter 4, the applicant avoided  the
rigors  of  trial  by  court-martial,  the  potential  of  a   federal
conviction, and a possible sentence  that  could  include  a  punitive
discharge,  possible  confinement,  and  forfeitures.   There  is   no
evidence that his  resignation  was  anything  other  than  voluntary.
Similarly, the applicant presented  no  evidence  in  support  of  his
allegations of misconduct by others.   The  applicant  has  failed  to
provide a sufficient basis for upgrading his  UOTHC  discharge  to  an
honorable discharge.  JAJM recommends the Board deny this  application
based upon its merits.

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

The Chief, Appeals & SSB Branch, AFPC/DPPPA, reviewed this application
and indicated that the applicant  first  appealed  the  contested  EPR
under the provisions of AFI 36-2401, Correcting Officer  and  Enlisted
Evaluations Reports on 2 Nov 95.  Since files are only  maintained  by
DPPPA for three years, they no longer have record of this  appeal  nor
do they have record of any other attempts on the applicant’s  part  to
challenge the validity  of  the  report  in  question.   However,  the
applicant provided  copies  of  his  appeal  along  with  Headquarters
AFPC/DPPPAE’s decision letter, dated 20 Nov 95, and with  another  AFI
36-2401 appeal, dated 26 Dec  95,  that  he  alleges  never  left  the
servicing military personnel flight (MPF).  The contested EPR has been
a matter of record for over four years and the test to be  applied  is
not merely whether the applicant discovered  the  error  within  three
years but whether, through due diligence,  he  could  or  should  have
discovered the error(s).  Therefore, DPPPA sees  no  valid  reason  to
waive  the  statute  of  limitations  and  consider  the   applicant’s
requests.  If the Board considers, then DPPPA recommends denial due to
lack of merit.  By law, a claim must be filed within  three  years  of
the date of discovery of  the  alleged  error  or  injustice.   It  is
obvious that the errors claimed here were  discoverable  at  the  time
they occurred.  The applicant has not provided a concrete  explanation
for not submitting another appeal since Nov  95.   While  DPPPA  would
normally recommend the application be denied  as  untimely,  they  are
aware that the Board has determined it must adhere to the decision  in
the case of Detweiler  v.  Pena  which  prevents  application  of  the
statute’s time bar if the applicant has filed within  three  years  of
separation or retirement.

The applicant contends the indorser of the contested report downgraded
the report to a “4” because “he said the  report  statements  did  not
justify a 5 and that (he) was a poor manager.”  The applicant contends
he had never met the indorser prior to the  publication  of  the  EPR.
First and foremost, applicant has provided nothing to verify the claim
that the statements did not  justify  a  “5”  rating.   There  was  no
requirement for the indorser to have personally  known  the  applicant
prior to his review/indorsement of the contested  EPR.   The  EPR  was
prepared in accordance with regulatory guidelines.

DPPPA further states that Air  Force  policy  is  that  an  evaluation
report is accurate as written when it becomes a matter of  record  and
to effectively challenge an EPR, it is necessary to hear from all  the
members  of  the  rating  chain—not   only   for   support   but   for
clarification/explanation.  The applicant has failed  to  provide  any
information/support from  the  rating  chain  on  the  contested  EPR.
Obvious by their  absence  is  any  type  of  documentation  from  the
evaluators concerned.  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.  In this case, the applicant filed an IG complaint that was
returned to him without  action  because  he  failed  to  exhaust  the
appropriate  appeal  procedures.   It   appears   the   reports   were
accomplished in direct accordance with  applicable  regulations.   The
burden of proof is on the applicant and he has not  substantiated  the
contested report was not rendered in  good  faith  by  all  evaluators
based on knowledge available at the time.  DPPPA recommends the appeal
be time-barred from considered.  If, however, the Board  considers  on
merit, then they recommend denial.

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

The  Special  Programs  Section,  AFPC/DPPRRP,  also   reviewed   this
application and indicated that by law, Section 8914, Title 10,  United
States Code (USC), an enlisted member of the  Air  Force  who  has  at
least 20 years of active service may, upon his  request,  be  retired.
AFI 36-3203, Service Retirements, provides the guidance for submission
of requests to retire.  Under Table 2.1, Rule 1, a member’s retirement
is suspended pending any investigation.  Applicant  states  that  over
the course  of  the  investigation,  he  was  repeatedly  offered  the
opportunity to submit a request for discharge  in  lieu  of  trial  by
court-martial.  In court-martial proceedings, the decision to submit a
Chapter 4 request rests solely with the accused.  The applicant admits
that he was aware that if he submitted a Chapter 4, he could receive a
discharge characterized as UOTHC and that the discharge  could  result
in the loss  of  his  retirement  benefits.   The  applicant  had  the
opportunity to litigate his case in a trial by court-martial but chose
to voluntarily submit his resignation.  No error or injustice occurred
in the retirement process and the  applicant’s  contentions  regarding
his case were never fully explored since he voluntarily elected not to
go to trial.  DPPRRP recommends denial.

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






APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were  forwarded  to  applicant  on
1 Jun 99 for review and response.  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.  After a thorough review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that he should be retired from active duty, effective  1 Feb
96, with an honorable discharge or that the contested report should be
removed from his records.  His contentions are duly noted; however, we
do not find these  assertions,  in  and  by  themselves,  sufficiently
persuasive to override the rationale provided by the  Air  Force.   We
therefore agree with the recommendations of the Air  Force  and  adopt
the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has failed to sustain his burden that he has suffered either
an error or an injustice.  Therefore, we find no compelling  basis  to
recommend granting the relief sought.

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 22 February 2000, under  the  provisions  of  Air
Force Instruction 36-2603:

                  Ms. Charlene M. Bradley, Panel Chair
                  Mr. Philip Sheuerman, Member
                  Ms. Marcia J. Bachman, Member
                Mrs. Joyce Earley, Examiner (without vote)

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 28 Jan 99, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter fr applicant, dated 9 Feb 99, w/atchs.
     Exhibit D.  Letter, AFLSA/JAJM, dated 12 Mar 99.
     Exhibit E.  Letter, AFPC/DPPPA, dated 26 Apr 99.
     Exhibit F.  Letter, AFPC/DPPRRP, dated 18 May 99, w/atchs.
     Exhibit G.  Letter, AFBCMR, dated 1 Jun 99.




                                   CHARLENE M. BRADLEY
                                   Panel Chair