RECORD OF PROCEEDINGS

             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-00670

                 INDEX CODE:  110.02; 110.03



                 COUNSEL:  NONE


                 HEARING DESIRED:  IF NECESSARY
_________________________________________________________________

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be upgraded  to  an
honorable discharge; he be returned  to  duty;  and  his  reenlistment
eligibility (RE) code be changed to allow him to  enter  the  Inactive
Ready Reserves or the National Guard.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The general court-martial charges were punitive and misleading and  it
is a huge personal loss  to  be  forced  to  resign.   He  would  have
preferred  some  form  of  non-judicial  punishment.   He   asks   for
correction of records based on AETC Form 156, which shows he  was  not
eliminated from training for misconduct.

He was given a 24-hour order to remain  in  quarters,  but  was  later
accused of violating the order.  He was called  in  and  told  he  was
placed on casual status and the next day, after the order expired,  he
went to work at his casual status location.  Theoretically, he was  in
violation of being out of his quarters 33 hours later, when the  order
was given as a 24-hour order.

He was accused of failure to go and being absent without leave (AWOL),
even though the leave request  form  was  signed  by  his  supervisor.
Neither he nor his supervisor was aware he had also  been  ordered  to
stay in the local area.  He was not eliminated from training for these
alleged serious acts of misconduct nor was he ever given  any  verbal,
written or other disciplinary actions for these alleged violations.

He believes these errors and injustices made a considerable difference
in the Secretary designating  the  character  of  his  discharge  from
honorable to general.  If the Board removes the two alleged charges of
disobeying an order and dereliction of duty, and there  is  absolutely
no evidence to support these accusations, you are left with a  maximum
punishment of 90 days, not 15 months, and no discharge for Resignation
in Lieu of (RILO).

He wants to return to duty.  He is an excellent officer.   He  is  not
asking to be absolved of his mistakes or  to  escape  punishment.   He
served over eight months confined to base and quarters  before  trial.
During this time, he was assigned a special project that was to be the
project of all projects in cost efficiency and training.  He asks  the
Board to investigate why a  person  so  horrible  was  given  so  much
responsibility while awaiting court-martial charges.

In support, he submits copies of his Personal  Statement  of  Military
Compensation; AETC Form 156; the case of United  States  v.  Andre  T.
Hargrove before the United States  Court  of  Appeals  for  the  Armed
Forces (USCAAF); his Statement of Service, dated 1 Dec  1997;  letters
of appreciation; letters of  recommendation;  his  Student  Record  of
Academic/Non-Academic Counseling  and  Comments,  dated  14  September
1998; his Air Force Achievement Medal for outstanding achievement  for
the period 7 April 1997 to 27  April  1997;  his  Officer  Performance
Report (OPR) for the period 11 June 1997 through 10 June 1998, with an
Education/Training  Report  for  the  period  15  July  1997   through
23 September 1997; and other  documents  associated  with  the  issues
under review.

The applicant's complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant had prior enlisted active service from 10 March 1992  to
15 March 1995.  He was appointed a 2nd lieutenant  (2Lt),  Reserve  of
the Air Force (ResAF), on 31 May 1997, and was voluntarily ordered  to
extended active duty on 11 June 1997.  During the period in  question,
he was assigned to the 392 Training Squadron (TRS), with duty  at  the
xxx Communications Squadron (AFSPC) at XXXX AFB, XX.

According to the Record of Administrative Training Action,  AETC  Form
125A, dated 9 October 1998, the Commander, 392  TRS  recommended  that
the applicant be disenrolled for refusal  to  participate  in  further
training/refusal  to  graduate  from  missile  initial   qualification
training (IQT).   She  recommended  that  he  not  be  considered  for
reinstatement at a later date;  and  not  be  considered  for  further
technical   training.    The   Commander,   381 TRG,   approved    the
recommendations and recommended he not be retained in the  Air  Force.
On 30 October 1998, it was determined that the applicant could not  be
utilized in another AFSC.

By letter dated 21 October 1998, the applicant requested retention  in
the Air Force and clarified his letter refusing training.  The initial
letter in which the applicant apparently refused  to  graduate;  chose
not to be evaluated;  and  requested  immediate  withdrawal  from  the
course is not documented in the record and was not  submitted  by  the
applicant.

On 9 November 1998, the Secretary of the Air Force  Personnel  Council
ordered termination  of  the  applicant’s  appointment  as  a  Reserve
officer and directed he be discharged with an honorable discharge  and
an SPD code of JHF  (Failure  to  Complete  Initial  Training,  Formal
Upgrade, or Certification Training).  The discharge was to be effected
ASAP.

On 7 January 1999, the following charges were  preferred  against  the
applicant:

      Charge I, Specification 1:  On or about 5 October 1998,  without
authority, fail to go at the time prescribed to his appointed place of
duty, to wit:  Building 8195.

      Charge I, Specification 2:  On or about 6 October 1998,  without
authority, absent himself from his place  of  duty  at  which  he  was
required to be, to wit:  his residence in XXXX, XXX, and did remain so
absent until on or about 7 October 1998.

      Charge I, Specification  3:   On  or  about  17  November  1998,
without authority, absent himself from his place of duty at  which  he
was required to be, to wit:  xxxx AFB, xx, and did  remain  so  absent
until on or about 18 November 1998.

      Charge II, Specification 1:  On or about  5  October  1998,  was
derelict in the performance of his duties in that he willfully  failed
to take his final training evaluation, as it was his duty to do.

      Charge II, Specification 2:  Having knowledge of a lawful  order
issued by his commander to remain in his quarters until  contacted  by
telephone within the next 24 hours, an order which it was his duty  to
obey, did at XXX, XX, on or about 6 October 1998,  fail  to  obey  the
same by leaving his quarters prior to being contacted by telephone.

On 8 February 1999, the applicant submitted a Request for  Resignation
in Lieu of Court-Martial (RILO).  The 30 SW/CC, 14 AF/CC, 2 AF/CC  and
AETC/CV all recommended that the RILO be  declined  and  court-martial
charges be pursued.  The rationale, as enunciated by AETC/CV, was that
the applicant’s disregard for military standards undermined individual
and unit respect for authority and negatively impacted on unit  morale
and discipline.  All command levels further recommended  that  in  the
event the SECAF accepted the  resignation,  the  applicant  should  be
discharged with an  under  other  than  honorable  conditions  (UOTHC)
discharge.  AFLSA/JAJM recommended that the  resignation  be  accepted
and he be discharged with a UOTHC discharge.

The Air Force Personnel Board (AFPB) considered the case  on  27 April
1999.   The  Board  reviewed  all  of  the  facts  and   circumstances
surrounding  the  case,  including  the  applicant’s  prior  exemplary
service as an enlisted member and  as  an  officer,  as  well  as  the
difficulties he encountered in trying to deal  with  his  marital  and
financial problems, and his concern for the welfare  of  his  stepson.
The Board recognized that all of these issues  severely  impacted  the
applicant's  ability  to  pursue  his  military  duties.   The   Board
concluded that  his  misconduct  was  not  sufficiently  egregious  to
warrant  trial  by  court-martial  but  rather,  could  be  adequately
addressed through  administrative  discharge  procedures.   The  Board
further concluded that the applicant’s misconduct was mitigated by the
number and nature of the personal problems he appeared  to  be  facing
and recommended that he be discharged with a general (under  honorable
conditions) discharge.

On 11 May 1999, the military judge ordered withdrawal and dismissal of
all charges and specifications on motion  of  the  prosecution  before
receipt of pleas following notification that the Acting  Secretary  of
the Air Force (ASAF) had accepted the applicant’s Resignation for  the
Good of the Service.

The ASAF directed the applicant’s resignation  for  the  good  of  the
service with an under honorable conditions (general)  discharge.   The
applicant was subsequently discharged on 19 May  1999,  having  served
4 years, 11 months and 14 days of total active service.   The  DD Form
214 reflects a narrative reason of “Triable by  Court-Martial”  and  a
separation program designator (SPD) code of “DFS” (Resignation for the
Good of the Service, ILO C-M (In  Lieu  Of  Court-Martial)  for  Other
Offenses).  Block 27, Reentry Code, is not applicable, since  officers
do not enlist or reenlist.

The General Court-Marital Order, dated 15  June  1999,  indicates  all
charges were dismissed during arraignment before receipt of pleas.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The Air Force Discharge Review Board (AFDRB)  denied  the  applicant's
request for an upgrade of discharge on 9 June 2000.   A  copy  of  the
AFDRB brief is at (Exhibit C).

The BCMR  and  Special  Programs  Manager,  AFPC/DPPAE,  reviewed  the
application  and  stated  that  since  officers  neither  enlist   nor
reenlist, they do not have  RE  codes.   The  DD  Form  214  correctly
reflects “NOT APPLICABLE” in Item  27,  Reentry  Code.   The  complete
evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

The AFDRB decision and the Air Force evaluation were forwarded to  the
applicant on 26 June 2000, for  review  and  response  within  30 days
(Exhibit E).  In accordance with policy, the application was forwarded
to this Board for further consideration.  In response to the  decision
of the AFDRB, the applicant stated that the  punishment  was  extreme.
Based on concrete evidence in his file, the AF/JAG was  deceived  into
recommending charges when he had no criminal intent.  He attempted  to
be responsible in making sure he did what was required of him based on
the information he was told at the time.

He omitted important information in  his  original  request.   He  was
already in the process of a pending ASAP separation, due  to  pick  up
orders in less than 24 hours, when he was detained.  He had an Article
15 pending and this is what the whole case is about and why  he  feels
he was treated unfairly and unjustly.  In order for his unit to  apply
any punishment and to stop the separation action, they had to  justify
a general court-martial to get him punished  and  released  with  less
than an honorable discharge.

On 2 October 1998, his supervisor gave him a choice to  do  his  final
evaluation and take the assignment or not to do the final  evaluation,
request reclassification, and not take the assignment.  He  was  never
counseled that his decision would be  used  to  bring  formal  charges
against him.  The supervisor made it seem as though he  had  a  choice
and the weekend to make that choice.  In his letter of 5 October 1998,
he informed his supervisor he could not go to the assignment  at  this
time, but “I am here to get my partner through the  ride.”   He  never
willfully refused to take the final evaluation, but was  ordered  home
and his supervisor had someone else do the ride with his partner.

He was charged with failure  to  go  and  dereliction  of  duty.   The
supervisor was upset that he was late for the  trainer  and  sent  him
home for  failure  to  go.   The  supervisor  then  charged  him  with
dereliction of duty when he gave  the  order  sending  him  home.   He
should only have been guilty of the lessor offense of failure to go.

The applicant explains the nature and  circumstances  surrounding  the
AWOL charges.  He also clarifies his reasons for filing a  RILO.   His
complete response is at Exhibit F.

_________________________________________________________________

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.  While we note that  the
applicant was experiencing marital and financial  difficulties  during
the period of misconduct that led to his  discharge,  after  reviewing
the evidence of record, we are not persuaded that the character of his
discharge should be changed.   Air Force  officials  considered  these
extenuating circumstances when determining the type  of  discharge  he
would receive. We seriously considered the applicant’s assertion  that
the commander should have pursued a lesser form of punishment  than  a
court-martial.  However, we find no impropriety in the  actions  taken
against the applicant or in the  characterization  of  the  discharge.
Given the seriousness of his misconduct, the commander does not appear
to have acted harshly or improperly in referring the matter  to  trial
by court-martial.  We point out that, in lieu  of  court-martial,  the
applicant tendered his resignation, which was accepted by the SAF.  We
do not believe the applicant should be allowed to halt  the  potential
consequences of a court-martial process at one point  and  then  later
litigate the same charges through the correction of  records  process,
when he has not provided convincing evidence  that  he  has  been  the
victim  of  prejudice,  tainted  procedures,   or   an   inappropriate
characterization of service.  Therefore, in the absence of evidence to
the contrary, we find no compelling  basis  upon  which  to  recommend
reinstating him, or upgrading his general discharge  to  an  honorable
discharge.

4.  Regarding the applicant’s request for a change in his reenlistment
eligibility (RE) code, we note that officers who  are  separated  from
the Air Force are not issued an RE code.  Therefore, no  basis  exists
to favorably consider this request.

5.  The documentation provided with this case was sufficient  to  give
the Board a clear understanding of the issues involved and a  personal
appearance, with or without counsel, would not have  materially  added
to that understanding.  Therefore, the request for a  hearing  is  not
favorably considered.


_________________________________________________________________

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 11 January 2001, under the provisions of AFI  36-
2603:

                 Mr. Gregory H. Petkoff, Panel Chair
                 Ms. Barbara J. White-Olson, Member
                 Mr. George Franklin, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Mar 2000, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  AFDRB Hearing Record, dated 9 Jun 2000.
    Exhibit D.  Letter, AFPC/DPPAE, dated 20 Jul 2000.
    Exhibit E.  Letter, SAF/MIBR, dated 26 Jun 2000.
    Exhibit F.  Letter, Applicant, undated.



                                   GREGORY H. PETKOFF
                                   Panel Chair