RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  02-02376
            INDEX CODES:  100.06, 126.04

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

The nonjudicial punishment under Article 15 initiated on 6 Apr 98  and
imposed on 23 Apr 98 be set aside and removed from his records.

His reenlistment eligibility (RE) code be changed from 4H to 1A.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was accused of  driving  under  the  influence  (DUI)  of  alcohol.
Regarding this incident, he believes that  he  was  misled  about  the
rights and privileges afforded  him.   Since  he  had  never  been  in
trouble before or after the incident, he was  unaware  of  the  actual
charge of the Article 15.  His defense counsel, commander,  and  first
sergeant told him the punishment given was  a  violation  and  not  an
Article 15.  Specifically, each said that the incident would in no way
be on any permanent record, and that he was receiving a reprimand,  as
indicated by the commander on the AF Form 3070 (Record of  Nonjudicial
Punishment Proceedings).  He found out that the incident  was  on  his
permanent record.  He was also told by a recruiter that he  could  not
rejoin the Air Force because of his reenlistment code of  4H.   He  is
outraged because he feels that he was lied  to  and  betrayed  by  his
superiors.

In support of his appeal, the applicant provided an expanded statement
and extracts from his military personnel records.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 5 Jul 95.  He  received
three Enlisted Performance Reports, in which the  overall  evaluations
were 4 (1-5 (Highest)).

On 6 Apr 98, the  applicant’s  commander  notified  him  that  he  was
considering whether he should be punished under  Article  15,  Uniform
Code  of  Military  Justice  (UCMJ)  based  on  allegations  that  the
applicant did, on or about 25 Mar 98, operate a jeep while drunk.  The
applicant was advised of his rights in the matter.   After  consulting
legal counsel, the applicant waived his right to demand trial by court-
martial, accepted the nonjudicial proceedings under  Article  15,  and
submitted  written  comments  for  review.   On  23  Apr   98,   after
considering the matters presented  by  the  applicant,  the  commander
found that the applicant had committed the alleged offense and imposed
punishment.  He was reduced from the grade of airman  first  class  to
airman, which was suspended until 23 Oct 98 and remitted,  ordered  to
forfeit $100.00 per month for two months, reprimanded, and ordered  to
perform 14 days of extra duty.   The  applicant  did  not  appeal  the
punishment.  On 14 May 98, legal authority found that the  nonjudicial
proceedings under Article 15 were legally sufficient.

On 4  Jul  99,  the  applicant  was  honorably  discharged  under  the
provisions of AFI 36-3208 (Completion of Required Active Service).  He
was assigned an RE code of 4H (Serving suspended  punishment  pursuant
to Article 15, Uniform Code  of  Military  Justice  (UCMJ)).   He  had
served 4 years of active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPAE indicated that the applicant received the  correct  RE code
of 4H  as  a  result  of  the  Article  15  punishment.   However,  in
accordance with AFI 36-2606, members are not to be discharged with the
RE code of 4H.  Further, there was no indication  by  the  applicant’s
commander that he intended to deny reenlistment or that he intended to
authorize reenlistment.  Based on a review of the applicant’s records,
the RE Code of 4H was  incorrect.   AFPC/DPPAE  recommended  that  the
applicant’s RE code be changed to 3K (Reserved for use by HQ  AFPC  or
the Air Force Board for Correction of Military Records  (AFBCMR)  when
no other reenlistment eligibility code applies or is appropriate).

A complete copy of the AFPC/DPPAE evaluation is at Exhibit C.

AFLSA/JAJM recommended denial of  the  applicant’s  request  that  the
nonjudicial punishment under Article 15 be set aside and removed  from
his records.  According to  AFLSA/JAJM,  the  applicant’s  contentions
have no merit.  It was clear from the AF Form 3070 that he was clearly
advised of the offense, the process,  and  the  potential  and  actual
punishment.   Applicant  did  receive  a  reprimand  as  part  of  the
nonjudicial punishment as he alleged, but it was in  addition  to  the
suspended reduction to the grade of airman, forfeiture of $100.00  pay
per month for two months and 14 days of extra duty.  Although  it  was
not clear from  the  matters  the  applicant  submitted  exactly  what
proceedings he complains violated his right against  double  jeopardy,
it appears that he refused to provide a breath or  blood  sample  when
stopped for the DUI.  His privilege to drive on Dover Air  Force  Base
(AFB) was suspended for a year as required by Air  Force  regulations.
It appears that the State of Delaware also  had  taken  administrative
action, presumably for the same incident, to suspend his  license,  as
the letter from the law firm references a successful Division of Motor
Vehicles  (DMV)  hearing  and  return  of  his  license.   Both  these
suspension proceedings are administrative  not  criminal--—proceedings
conducted by different sovereigns--Delaware  and  the  United  States.
The  Constitutional  protection  against  double   jeopardy   is   not
applicable  under  these  circumstances,  nor  would  it  have  barred
criminal prosecution by either Delaware or the United States  if  that
had occurred.  The  suspension  proceedings  are  independent  of  the
Article 15 process and involve  different  issues.   The  facts  under
review in a suspension hearing for refusing to provide  a  sample  are
generally whether the appropriate procedures were followed.  There was
no evidence as to the basis for the civilian DMV  decision,  but  that
basis could easily have nothing to do with whether the applicant drove
while drunk.  The applicant’s reliance on this provision and  argument
is misplaced.

In AFLSA/JAJM’s view, the applicant has  provided  no  evidence  of  a
clear error or injustice related to the nonjudicial punishment action,
and did not otherwise demonstrate an equitable basis for relief.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that the  Air  Force  had  no
concrete evidence or proof that he was over the drinking legal  limit.
This lack of evidence was error number one contrary to what AFLSA/JAJM
believes.  Anyone who alleged or thought that he was drunk were  going
on hearsay.  Error number two occurred when the  two  Security  Police
officers at the north gate of Dover Air Force Base (AFB)  did  not  do
their jobs properly.  He asked four times about his  rights  regarding
the base and state driving laws.  Each time his rights  as  a  service
member and a citizen was disregarded.  There was  no  breathalyzer  or
blood tests done.  The charge was dismissed and the military  saw  fit
to punish him without cause or proof.  He seeks to  have  this  charge
dropped from his record because it was wrong.  His ambition  and  goal
in life has and always will be to serve his country  with  honor.   He
now desires to become an officer in the  Air  Force  or  Air  National
Guard.  He asks that the chance to serve his country  proudly  not  be
taken away from him.

Applicant’s complete response, with attachments, 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 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  concerning  the  applicant’s  request
that his RE code be changed.  The evidence of record indicates that he
received an Article 15 with a suspended reduction from  the  grade  of
airman first class to airman.  Thus, he was appropriately assigned the
RE Code of 4H.  However, AFPC/DPPAE has indicated that  in  accordance
with the governing instruction, he should not have been  assigned  the
RE  code  of  4H  in  conjunction  with  his  discharge.    Therefore,
AFPC/DPPAE recommends that the RE code be changed to 3K.  We note that
just prior to the  incident  for  which  the  applicant  received  the
Article 15, his supervisor recommended him for reenlistment,  however,
we have no evidence whether or not the applicant's commander  intended
to select him for reenlistment after this incident.  Therefore, we are
not inclined to change his RE code to one that would  allow  immediate
reenlistment.  Accordingly, we agree with AFPC/DPPAE’s  recommendation
that the RE code of 4H be  changed  to  3K.   This  will  provide  the
applicant with an RE code that, based on the needs of  the  respective
military service, can be waived by the enlistment authorities.

4.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of probable error or injustice regarding the applicant’s
requests that the Article 15 imposed on 23 Apr 98  be  set  aside  and
removed from his records.  We took notice of the applicant's  complete
submission in judging the merits of the case.   However,  we  did  not
find it sufficient to override the rationale provided  by  AFLSA/JAJM.
The evidence of record reflects that his commander determined that  he
had committed the alleged offense of operating a jeep while drunk, and
made the decision to impose nonjudicial punishment under  Article  15.
The applicant elected not  to  appeal  the  punishment.   We  are  not
inclined to disturb the discretionary judgment of commanding officers,
who are closer to events, absent a strong showing  of  abuse  of  that
authority.  Therefore, in the absence of evidence which shows  to  our
satisfaction that the applicant’s substantial rights were violated, he
was coerced to waive any of his rights, or the commander  who  imposed
the nonjudicial punishment  abused  his  discretionary  authority,  we
conclude that no basis exists to recommend  favorable  action  on  the
applicant’s request.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected  to  show  that  his  Reenlistment
Eligibility  (RE)  Code  issued  in  conjunction  with  his  honorable
discharge on 4 Jul 99 was "3K."

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number 02-
02376 in Executive Session on 28 Jan 03, under the provisions  of  AFI
36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Diane Arnold, Member
      Mr. Michael Barbino, Member

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

     Exhibit A.  DD Form 149, dated 20 Aug 02, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPAE, dated 28 Oct 02.
     Exhibit D.  Letter, AFLSA/JAJM, dated 14 Nov 02.
     Exhibit E.  Letter, SAF/MRBR, dated 27 Nov 02.
     Exhibit F.  Letter, applicant, dated 22 Dec 02, w/atchs.




                                   RICHARD A. PETERSON
                                   Panel Chair










AFBCMR 02-02376




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 , be corrected to show that his Reenlistment
Eligibility (RE) Code issued in conjunction with his honorable
discharge on 4 Jul 99 was "3K."







    JOE G. LINEBERGER

    Director

    Air Force Review Boards Agency