RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  99-01654
            INDEX CODE:

            COUNSEL:  ROBERT T. SUMMA

            HEARING DESIRED:  YES


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APPLICANT REQUESTS THAT:

1.   He  be  reinstated  to  active  duty  under  the  terms  of   his
reenlistment contract dated 20 April 1998.

2.  He be reissued Joint Spouse permanent change of station orders.

3.  The Letter of Counseling, dated 28 October 1998, be  removed  from
his records.

4.  He receive all back pay and allowances due from date of  discharge
to present.

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APPLICANT CONTENDS THAT:

Counsel for the applicant states that AFI 36-3208  mandates  that,  in
deciding whether or not a basis for discharging an  airman  exists,  a
commander may only consider acts or conditions that have  occurred  or
existed in that airman’s current term of enlistment.

The Record  of  Individual  Counseling,  dated  28  October  1998  was
unjustified in that  the  underlying  order  was  illegal  and  beyond
Applicant’s ability to control.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  8  March  1995  for  a
period of 4 years.  On 20 April 1998, he reenlisted for a period of  4
years.

On 16 November 1998, the applicant was notified by his commander  that
discharge action had been initiated  against  him  for  a  pattern  of
misconduct prejudicial to good order and  discipline.   The  commander
advised his reason for this action being taken was:  (1) The applicant
received a Record of Counseling (ROC), dated 28 October 1998,  and  an
entry was made on his Unfavorable Information File (UIF).  (2)  On  or
about 4 May 1998, applicant was disorderly and received  a  Letter  of
Reprimand, 18 May 1998, an entry was made on his UIF and he was placed
on the control roster.   (3)  On  27  September  1997,  applicant  was
disorderly in the dormitory and the commander initiated a vacation  of
suspended Article 15 punishment  for  assault  upon  another  military
member; at the same time, the commander elected not  to  proceed  with
the punishment after considering applicant’s  presentation.   However,
applicant  was  verbally  counseled  on  anger  management   for   his
disorderly conduct.   (4)  On  or  about   22  March  1997,  applicant
unlawfully struck an NCO and was disorderly.  For this misconduct,  he
received Article 15 punishment.  (5)  On  or  about  5  January  1997,
applicant was involved in a fight at the NCO club where  he  assaulted
other military members and incited the fight.  For this misconduct, he
received  a  ROC.   The  commander  advised  the  applicant   if   his
recommendation for discharge was approved, he would be ineligible  for
reenlistment in the Air Force.  Applicant was also advised  he  had  a
right to consult counsel and the right to submit statement on his  own
behalf.  He consulted counsel and did submit a statement  on  his  own
behalf.  On 1 December 1998,  the  discharge  authority  approved  the
recommendation for discharge for misconduct and directed the applicant
be given an under honorable conditions (general) discharge.

The applicant, while serving  in  the  grade  of  senior  airman,  was
discharged from the Air Force on 4 December 1998 under the  provisions
of AFI 36-3208, Administrative Separation of Airmen  (Misconduct)  and
received an under honorable conditions (general) discharge.  He served
3 years, 8 months, and 27 days total active service.

On 15 March 1999,  the  Air  Force  Discharge  Review  Board  upgraded
applicant’s characterization of discharge to Honorable and changed the
reason for discharge to Secretarial Authority.

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AIR FORCE EVALUATION:

The Military Personnel Management Specialist, AFPC/DPPRS, reviewed the
application and states that the discharge complies with directives  in
effect at the  time  of  applicant’s  discharge.   The  discharge  was
consistent with the procedural and  substantive  requirements  of  the
discharge regulation and was within the discretion  of  the  discharge
authority and that the applicant was provided full administrative  due
process.

It is noted that although there was a procedural error in  the  Letter
of Notification, it was identified prior to the discharge authorities’
final review of the case and was not prejudicial to the findings.  The
applicant  did  not  provide  facts   or   evidence   warranting   his
reinstatement to active duty.  Therefore,  they  recommend  denial  of
applicant’s request.

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

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 2 August 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.

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ADDITIONAL AIR FORCE EVALUATION:




The Staff Judge Advocate, AFPC/JA, reviewed the application and states
that they believe that if the guidance given by the commander  to  the
applicant was intended to be an order which prohibited  the  applicant
from ever contacting the police, such  an  order  would  be  unlawful.
Nontheless, they do not believe that the commander’s guidance rose  to
the level of an order,  nor  do  they  believe  that  the  applicant’s
misconduct  in  September  1998  resulted  from  or  was  in  any  way
exacerbated by the commander’s admonition  to  not  have  any  further
involvement with the police.  The purpose of the commander’s  guidance
was obviously intended to deter the applicant from affiliating with  a
bad crowd or from frequenting establishments in which he was likely to
encounter persons of a temperament similar to his.   They  state,  the
guidance was legitimate and met a valid military purpose.

In conclusion, they  state  that  the  Separation  Authority  properly
considered the misconduct from the applicant’s current misconduct as a
basis for discharge.  The  other  incidents  of  misconduct  from  the
enlistment immediately preceding  the  applicant’s  reenlistment  were
considered only to determine whether discharge was appropriate.

In their opinion, the applicant’s underlying pattern of misconduct  on
4 May 1998 and 7 September 1998 and not the  unlawful  order  was  the
genesis of the involuntary discharge action against him.  It  was  the
final straw in the numerous efforts of two commanders to  rehabilitate
the applicant who had proven  himself  a  violent  and  uncontrollable
individual by his involvement in more than  five  incidents  of  known
assaultive behavior in less than four years of military service.  They
not only believe that  the  initiation  of  an  involuntary  discharge
against the applicant was substantially justified,  but  that  it  was
long overdue.  In their opinion,  the  involuntary  discharge  of  the
applicant  substantially  and  procedurally  complied  with  all   the
applicable law and regulations which appertained thereto.   Therefore,
they recommend denial of the applicant’s request.

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

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APPLICANT’S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

On 18 February 2000, 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.

On 24 August 2000, a copy of the Air Force evaluation was forwarded to
the counsel for review and response within 30 days.  As of this  date,
no response has been received by this office.

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THE BOARD CONCLUDES THAT:

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

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of probable error or injustice.  We took notice  of  the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the comments and recommendation  of  the  Staff
Judge Advocate  and  adopt  their  rationale  as  the  basis  for  the
conclusion  that the applicant has not been the victim of an error  or
injustice.  Therefore, based on the available evidence of  record,  we
find no basis upon which to favorably consider this application.

4.    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.

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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 November 2000, under the provisions of AFI 36-
2603:

                       Mr. Terry A. Yonkers, Panel Chair
                       Ms. Marcia J. Bachman, Member
                       Ms. Margaret A. Zook, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 24 Jun 99, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPRS, dated 7 Jul 99.
      Exhibit D. Letter, AFBCMR, dated 2 Aug 99.
      Exhibit E. Letter, AFPC/JA, dated 7 Feb 00.
      Exhibit F. Letter, AFBCMR, dated 18 Feb 00.




                             TERRY A. YONKERS
                             Panel Chair