RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2002-00882
                 INDEX CODE:  126.00
                 COUNSEL:  NONE

                                        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

Her Article 15 be set aside so that her discharge can be  upgraded  so  that
she may qualify for Montgomery GI Bill (MGIB) benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

She received an Article 15 for not having proper headcovering while  wearing
a parka hood.  Many people, including her officer-in-charge, were not  aware
of the policy and did the same thing she did.  After receiving  her  Article
15, the hospital printed the rule in their newspaper, because it had  become
commonplace for people to do this.  Although, the Article 15 was the  reason
for her discharge, her main problem was weight.

She was young and naïve at the time of this incident and did  not  fight  it
as she should have.  Applicant states that  she  has  been  a  good  citizen
since leaving the service and is currently attending college  and  receiving
a 4.0 grade point average.

She is currently pursuing a Bachelor’s Degree in  Healthcare  Administration
and the G I Bill to help finance her schooling.

In support  of  the  application,  the  applicant  submits  a  DD  Form  214
(Certificate of Release or Discharge from active duty,  including  one  that
was voided); AF Form 3070, Record  of  Nonjudicial  Punishment  Proceedings,
dated 3 Mar 93; AF Form 366, Record of Proceeding of Vacation  of  Suspended
Nonjudicial Punishment, dated 25 Jun 93; copies of two Enlisted  Performance
Reports,  closeout  dates  1  Jun  93  (Referral  report)  and  29  Sep  92,
respectively.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________



STATEMENT OF FACTS:

On 31 Jan 91, the applicant enlisted in the Regular Air Force in  the  grade
of airman basic (AB/E-1), for a period of  four  years.   She  received  two
performance  reports  with  overall  evaluation  ratings  of  four  and  two
(referral report), respectively.  Applicant was  progressively  promoted  to
the grade of airman first class, with an effective date and date of rank  of
1 Nov 92.

The applicant received a Letter of Reprimand on 21 Nov 91,  for  failure  to
obey a lawful order given by her commander by failing to report to  the  gym
for mandatory fitness training on or about  23 Aug 91  through  13  Nov  91.
She received a second LOR on 10 Jan 93 for the  same  misconduct  between  2
through 30 Dec 92.  An Unfavorable Information File was  established  on  16
Jan 93.

On or about 3 Feb 93, applicant failed to obey a general lawful  regulation,
AFR 35-10, by going outside without the proper headgear and  by  wearing  an
Air Force uniform without  the  proper  grade  insignia.   She  received  an
Article 15 and her punishment consisted of a suspended  reduction  in  grade
to airman, 14 days of restriction, 14 days of extra duty, and forfeiture  of
$195 pay.  On 21 May 93, applicant wrote a check to the AAFES in the  amount
of $25.95 that was returned for nonsufficient funds.  For  this  misconduct,
the squadron commander vacated the suspended reduction in grade  on  23  Jun
93.  The applicant’s  new  date  of  rank  as  airman  basic  was  effective
26 Feb 93.

The record also reflects that on 9 Jul 91, the applicant  was  entered  into
the Weight Management Program (WMP) when her body fat was measured  at  38%,
10% above her  maximum  allowable  body  fat  (MABF)  standard.   Her  first
failure following entrance into Phase I occurred on  23  Oct  91,  when  her
body fat measurement (BFM) was 39%,  a  6%  increase  from  her  23  Sep  91
measurement for which she received  a  letter  of  counseling.   Her  second
failure came on 6 Dec 91, when her body fat measurement increased to 40%,  a
1% increase over her 23 Oct 91 measurement.  She received an  LOR  on  9 Dec
91, for failure to lose the required 2% body fat per month.  On 16  Jun  92,
she failed a third time when her BFM was 33%, a 6% increase from her 15  May
92 BFM, and she received another LOR.  On 10 Nov 93,  while  in  the  1-Year
Probation Period, her monthly BFM was 29%, a 3% increase from her 22 Feb  93
BFM.  For this she was reentered into Phase I and received an LOR on  24 Nov
93.

On 13 Dec 93, while in Phase I, her monthly BFM  was  34%,  a  5%  body  fat
increase and 9 pounds increase  in  body  weight.   For  this  failure,  she
received an LOR, was placed on a  control  roster  on  16 Dec  93,  and  was
demoted to the grade of airman basic (AB/E-1) on 30 Dec  93.   The  LOR  was
filed in her existing UIF.

On 5 Jan 94,  the  squadron  commander  initiated  administrative  discharge
action  against  the  applicant  for  Minor  Disciplinary  Infractions   and
Exceeding Body Fat Standards. The specific reasons for the  proposed  action
were the incidents cited above.

On 5 Jan 94, applicant acknowledged receipt of  the  discharge  notification
and that military legal counsel had been made available to her.  On  10  Jan
94, after consulting with counsel and having been  advised  of  her  rights,
applicant submitted a written statement in her own behalf.  On  12  Jan  94,
the Staff Judge Advocate found the case file to  be  legally  sufficient  to
support a general  discharge  without  probation  and  rehabilitation.   The
discharge authority approved a  general  discharge,  without  probation  and
rehabilitation.

On 14 Jan 94, the applicant was discharged under the provisions of  AFR  39-
10, by reason of misconduct, with service characterized  as  general  (under
honorable conditions).  She  served  2  years,  11 months,  and  14 days  on
active duty.

On 15 Aug 02, the Air Force  Discharge  Review  Board  (AFDRB)  granted  the
applicant’s request  to  have  her  discharge  upgraded  to  honorable.   In
regards to the reason and authority, the AFDRB found that  neither  evidence
of record, nor that provided by the applicant, substantiated an inequity  or
impropriety, which would justify a change in the reason  for  separation  or
authority (see AFDRB Hearing Record at Exhibit C).

On 23 Sep 02, HQ AFPC/DPPRSP  corrected  the  applicant’s  DD  Form  214  to
reflect her characterization of service as honorable.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM addressed the applicant’s request in regards  to  the  26 Feb  93
Article 15 and recommended no  relief  be  granted.   They  state  that  the
applicant maintains that the Article 15 was not appropriate  because  others
thought that wearing a parka without proper headgear  was  acceptable.   She
asserts that the reason for the Article 15 was due  to  her  weight  control
problems, not the incident regarding headgear.

JAJM indicates that nonjudicial  punishment  is  permitted  by  Article  15,
UCMJ,  and  governed  by  the  Manual  for  Courts-Martial  and  Air   Force
Instruction  51-202.   This  procedure  permits  commanders  to  dispose  of
certain offenses without trial by court-martial unless  the  service  member
objects.  Service members first must be notified by their commanders of  the
nature of the charged offense, the evidence supporting the offense,  and  of
the commander’s  intent  to  impose  nonjudicial  punishment.   The  service
member may then consult with a  defense  counsel  to  determine  whether  to
accept nonjudicial punishment proceedings or demand trial by  court-martial.
 Accepting the proceedings is simply  a  choice  of  forum;  it  is  not  an
admission of guilt.

JAJM states by electing to resolve the allegation in the nonjudicial  forum,
applicant vested her commander with the  responsibility  to  decide  whether
she had committed  the  offenses.   The  commander  had  to  weigh  all  the
evidence, including the applicant’s assertions, and make her  decision.   In
this case, the commander determined that the  applicant  had  committed  the
alleged  offenses.   Applicant’s  response  to  the  Article  15  failed  to
convince her commander of her innocence  and  the  applicant  chose  not  to
appeal the punishment.

A set aside should only be granted when the evidence demonstrates  an  error
or  a  clear  injustice.   The  evidence  presented  by  the  applicant   is
insufficient to warrant setting aside the Article 15 action,  and  does  not
demonstrate an equitable basis for relief.  The applicant  has  provided  no
evidence  of  a  clear  error  or  injustice  related  to  the   nonjudicial
punishment action.

A complete copy of the JAJM evaluation is at Exhibit D.

HQ AFPC/DPPAT addressed the  applicant’s  request  for  Montgomery  GI  Bill
(MGIB) benefits.  They state that  the  MGIB  requires  that  an  individual
receive an Honorable discharge and serve a particular amount of active  duty
in order to qualify for  benefits.   The  amount  of  required  active  duty
varies with the separation reason.  For example,  an  individual  discharged
for hardship may qualify for a month-to-month benefit after  serving  a  few
months while an individual discharged for weight control  will  not  qualify
for benefits unless he or she serves a full term  of  service.   Individuals
discharged for misconduct must serve a full term.

They provided no recommendation.  They further state if the  Article  15  is
to be set aside and the discharge upgraded  to  honorable,  the  applicant’s
reason for separation would also have to be changed  so  she  could  qualify
for the MGIB benefits.  Considering the time the applicant spent  on  active
duty, the only possible separation reason would seem  to  be  “Miscellaneous
Reasons/General Reasons.”

A complete copy of DPPAT evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force Evaluations were forwarded to the  applicant  on  19
Jul 02 for review and comment within 30 days.  As of this date, this  office
has received no response (Exhibit F).

_________________________________________________________________




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.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice warranting partial  relief.   The  discharge
appears to be in compliance with the governing directives  and  we  find  no
evidence  to  indicate  that  her  separation  from  the   Air   Force   was
inappropriate or that the applicant was  not  afforded  all  the  rights  to
which entitled at the time of discharge.  However, the Board noted that  her
discharge was based on minor disciplinary infractions and Weight  Management
Program (WMP) failures.   The  Air  Force  Discharge  Review  Board  (AFDRB)
determined that  applicant’s  discharge  was  too  harsh  and  upgraded  her
discharge to honorable.  After a thorough review of the evidence of  record,
it is the opinion of the Board that most of  the  misconduct  which  led  to
applicant’s discharge was associated with her  failure  in  the  WMP.    The
majority of the Board believes that a narrative  reason  for  separation  of
“weight  control  failure”  more  accurately  describes   her   reason   for
separation.  In view of the above, the majority of the Board recommends  her
records be amended to the extent indicated below.

4.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of  error  or  injustice  regarding  the  applicant’s  nonjudicial
punishment.  We noted applicant’s complete submission in judging the  merits
of the case.  However, we agree with the comments of  the  Military  Justice
Division (AFLSA/JAJM) and  adopt  their  rationale  as  the  basis  for  our
conclusion that the applicant has  not  been  the  victim  of  an  error  or
injustice.  The commander has discretionary authority to impose  nonjudicial
punishment  under  Article  15,  UCMJ,  when  she  concluded  that  reliable
evidence existed to indicate an offense was  committed.   When  offered  the
Article 15, applicant had an  opportunity  to  establish  her  innocence  by
demanding trial by court-martial.  However, she chose  not  to  pursue  this
avenue and accepted the Article 15 instead.  Applicant has not provided  any
evidence to sufficiently convince the Board that the  commander  abused  her
discretionary authority in imposing the Article 15  punishment.   Therefore,
we  conclude  that  no  basis  exists  to  recommend  favorable  action   on
applicant’s request to set aside the Article 15.

_________________________________________________________________



RECOMMENDATION OF THE BOARD

The pertinent military records of the Department of the Air  Force  relating
to  APPLICANT  be  corrected  to  show  that  on  14 January 1994,  she  was
discharged by reason of “Weight Control Failure,”  with  Separation  Program
Designator (SPD) code “JCR.”

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2002-
00882 in Executive Session on 6 March  2003  and  10 April 2003,  under  the
provisions of AFI 36-2603:

                 Mr. Joseph A. Roj, Panel Chair
                 Ms. Barbara J. White-Olson, Member
                 Mr. Roscoe Hinton, Jr., Member

All members of the Board voted to deny applicant’s request to set aside  the
Article 15.  The majority of the Board voted to grant the applicant  partial
relief in the form of changing her reason for separation to “Weight  Control
Failure.”   Mr.  Hinton  voted  to  change  the  reason  for  separation  to
“miscellaneous reasons/general reasons” so that  she  may  qualify  for  the
MGIB and did  not  desire  to  submit  a  minority  report.   The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Mar 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  AFDRB Hearing Record, dated 15 Aug 02.
    Exhibit D.  Letter, AFLSA/JAJM, dated 21 Jun 02.
    Exhibit E.  Letter, HQ AFPC/DPPAT, dated 19 Apr 02.
    Exhibit F.  Letter, SAF/MRBR, dated 19 Jul 02.




                                        JOSEPH A. ROJ
                 Panel Chair

AFBCMR BC-2002-00882




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR


            CORRECTION OF MILITARY RECORDS (AFBCMR)


SUBJECT:  AFBCMR Case of APPLICANT

      I have carefully considered all the circumstances of this case and  do
not agree with the recommendation of the majority  of  the  Panel  that  the
applicant’s reason for separation should be  changed  from  “Misconduct”  to
“Weight Control Failure.”

      The record reflects that the applicant was discharged for misconduct.
 However, the Board majority noted that most of the incidents of misconduct
were related to her unsatisfactory progress on the Weight Management
Program and failures to report for mandatory fitness training.  The Board
majority believed that changing the reason for separation to “Weight
Control Failure” more accurately reflected the basis for her involuntary
separation.  The minority member disagreed.  He noted that the Air Force
Discharge Review Board had found the characterization of the applicant’s
discharge too harsh and upgraded it to honorable.  Furthermore, the
applicant had served over 35 months of her enlistment contract.  In view of
this, the minority member recommended that the reason for separation be
changed to “Miscellaneous/General Reasons.”

      I agree with the minority member and direct that the applicant’s
record be corrected to show that the reason for her separation was
“Miscellaneous/General Reasons.”

                                       JOE G. LINEBERGER
                                       Director
                                       Air Force Review Boards Agency


AFBCMR BC-2002-00882
INDEX CODE:  110.00




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 14 January 1994, she was
discharged by reason of “Miscellaneous/General Reasons,” with Separation
Program Designator (SPD) code “KND.”





                                                   JOE G. LINEBERGER
                                                   Director
                                                   Air Force  Review  Boards
Agency