RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-03256
            INDEX CODE:  110.00
            COUNSEL:  NONE

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His reason for discharge be changed to retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He had over 18 ½ years of  honorable  service  and  a  number  of  favorable
communications, medals and awards in his record  prior  to  his  misconduct.
His behavior was consistent with the Air  Force’s  interest  in  maintaining
good order and discipline.  On  29 January  2001,  the  government  withdrew
court-martial  proceedings.    He   was   never   relieved   as   a   senior
Noncommissioned  Officer  because  he  fulfilled  his  duties  as  Dormitory
Manager until 12 February 2001.  He later left the dormitories to return  to
the flight line.  He  was  issued  a  security  badge  and  in-processed  as
Section Shift chief and performed these duties  until  his  discharge  on  8
March 2002.

He believes his commander  was  unfair  or  things  were  uncertain  to  him
because his attorney informed him  that  if  he  made  it  to  20  years  of
service, he would receive his retirement.  Due to Stop Loss, he was told  to
pick a retirement date after June 2002, so  he  elected  1  September  2002.
His commander didn’t sign his retirement form until  26  October  2001.   It
seems to  him  that  the  government  stalled  for  time  to  write  letters
regarding his discharge versus his  retirement.   If  he  completed  his  20
years and was eligible for retirement, he should have been  able  to  submit
his retirement paperwork and receive his benefits.

He believes the  punishment  he  received  was  too  harsh  because  of  the
financial losses.  He worked  many  12-hour  days/nights  before  and  after
September 11 and doing  whatever  the  Air  Force  needed  to  complete  the
mission.  Despite the administrative discharge board  pending,  his  loyalty
or attention to duty never faltered.  He should be entitled  to  change  the
type of separation to retirement.

In support of his application, the applicant provides a  personal  statement
and documents associated with his discharge, a copy  of  his  DD  Form  214,
disclosure of his  financial  loss  due  to  his  discharge,  a  copy  of  a
notification for WAPS promotion testing cycle for 02E8, and  a  copy  of  AF
Form 911, Senior Enlisted Performance Report,  for  the  period  3  November
2000 through 2 November 2001.   His complete submission,  with  attachments,
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Records indicate applicant’s Total Active Federal Military Service  Date  as
28 September  1981.   The  applicant  continued  to  enlist  with  his  last
reenlistment occurring on 27 December 1999, in the grade of master  sergeant
(E-7), for a period of 5 years.  The  following  is  a  resume  of  his  EPR
ratings, commencing with the report closing 02 November 1997.

      PERIOD ENDING          PROMOTION RECOMMENDATION

        02 NOV 97                 5
        02 NOV 98                 5
        02 NOV 99                 5
        02 NOV 00                 5
        02 NOV 01                 1 (referral)

On 11 December 1981, nonjudicial punishment was  imposed  on  the  applicant
under Article 15, UCMJ,  based  on  the  allegation  that  on  or  about  21
November 1981, he stole a pair of sunglasses, of a  value  of  about  $8.00,
the property of the Army-Air Force Exchange  Service.   He  was  ordered  to
forfeit $250.00 per month for 2 months and to undergo  14  consecutive  days
of correctional custody.  However,  the  forfeiture  of  pay  in  excess  of
$150.00 per month for two months and correctional custody  in  excess  of  7
consecutive days was suspended until 20 March 1982, at  which  time,  unless
sooner vacated, it would be remitted without further action.

On 23 June 1994, the applicant received a letter of  counseling  for  having
an over-due account with the Travis Enlisted Club in the amount of  $315.00.


On 7 June 1997, the applicant received a Letter of Counseling based  on  the
allegation that unauthorized charges  were  made  on  his  American  Express
charge card totaling approximately $1,076.  Applicant  agreed  to  reimburse
American Express in monthly payments until the debt was repaid.

In June 2000, the applicant’s commander was advised that  a  urine  specimen
provided by the applicant via a random urinalysis on  13 June  2000,  tested
positive for Tetrahydrocannabinol (THC) at 25 ng/ml.

On  26  March  2001,  the  applicant’s  commander  initiated  administrative
separation  proceedings  against  him  for  misconduct,  drug  abuse.    The
applicant was advised of his rights in the matter and that  an  under  other
than honorable conditions discharge would be recommended.  After  consulting
military  legal  counsel,  the  applicant  elected  a  hearing   before   an
administrative discharge board.  On 15 June 2001,  an  Administrative  Board
Hearing  was  held  and  found  the  applicant  subject  to  discharge   for
Misconduct, Drug Abuse.  In a legal  review  of  the  discharge  case  file,
dated 18 July  2001,  the  staff  judge  advocate  found  the  file  legally
sufficient and recommended that he be discharged with  a  general  discharge
without the offer of probation and rehabilitation.   On  23 July  2001,  the
discharge authority approved the recommendation for discharge by  reason  of
drug abuse and directed  that  he  be  given  a  general  discharge  without
probation and rehabilitation.  Based on the fact that he was  credited  with
more than 19  years  of  active  military  service,  he  requested  and  was
considered for lengthy service probation under the  provisions  of  AFI  36-
3208, Chapter 6, Section F.   However,  on  10  October  2001,  the  lengthy
service  consideration  request  was  returned  without  action   from   the
Secretary of  the  Air  Force  due  to  the  applicant  reaching  retirement
eligibility.   On  28 September  2001,  the  applicant   became   retirement
eligible  and  applied  for  retirement  effective  1  September  2002.   On
26 November  2001,  the  commander  recommended  that  his  application  for
retirement be denied and that discharge be executed with a  general  service
characterization.  On 7 February  2002,  the  Secretary  of  the  Air  Force
approved this recommendation and directed that the  approved  administrative
discharge be executed.

On 8 March  2002,  the  applicant  was  discharged  with  a  general  (under
honorable conditions) discharge.  He had served 20 years,  5 months  and  11
days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends the application be denied.  JA states that  none  of  the
factors cited by the  applicant  provides  sufficient  basis  to  grant  his
request.  He wrongfully used marijuana, a serious violation of  the  Uniform
code of Military Justice.  Even though the process for  resolving  the  case
against him was somewhat lengthy,  a  review  of  the  case  file  shows  no
evidence of unfairness or  injustice.   JA  states  that  an  administrative
discharge board heard his case and recommended his discharge  from  the  Air
Force.  His case was forwarded  to  the  Secretary  of  the  Air  Force  for
lengthy service review and returned without action.  The  Secretary  of  the
Air Force reviewed and denied his application  for  retirement  in  lieu  of
discharge.  The AFPC/JA evaluation is at Exhibit C.

AFPC/DPPRRP recommends the application be denied.  DPPRRP states that  there
were no injustices or  irregularities  that  occurred  in  the  dual  action
retirement/discharge processing.  On 7 February 2002, the Secretary  of  the
Air Force disapproved the applicant’s application  for  retirement  and  the
general  discharge  ordered  by  the  discharge  board  was  executed.   The
AFPC/DPPRRP evaluation, with attachments, is at Exhibit D.

AFPC/DPPRS recommends the application be denied.  DPPRS  states  that  based
on the documentation on file, they  believe  his  discharge  was  consistent
with  the  procedural  and  substantive  requirements   of   the   discharge
regulation.  He did not submit any new evidence or identify  any  errors  or
injustices that  occurred  in  the  discharge  processing.   The  AFPC/DPPRS
evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant responds by stating that his attorney improperly informed  him  at
the end of his administrative board  decision  that  he  would  receive  his
retirement.  His attorney told him not to  worry  and  just  keep  his  nose
clean up until his 20-year anniversary.  On 28  September  2001,  he  became
retirement eligible and tried to apply  for  retirement  but  his  commander
informed him that his career field  was  on  hold  for  Stop  Loss  and  she
wouldn’t  sign  his  retirement  application.   He  was  informed   by   the
retirements section that he could apply for retirement  after  1 June  2002,
because of Stop Loss; therefore, he chose the  1 September  2002  retirement
date.

Applicant states that  the  last  two  and  a  half  years  have  been  very
difficult since he is trying to support a wife, three  children  and  a  son
with a very serious medical condition.  He has been looking  very  hard  for
work but found out when applying for the Ohio Corrections  that  he  was  in
the  FBI’s  computer  for  a  charge  of  Use/Possession  of  a   Controlled
Substance.  He believes  that  this  has  caused  hardship  for  his  family
because charges were  still  valid  in  the  FBI’s  computer  after  he  was
discharged from the Air Force and while being on active duty with  a  flight
line security clearance.  If his unit thought he was a drug abuser, why  did
they reinstate his security badge and have him supervise 90 people.  If  the
government could not convict him in a court-martial, whey did  they  mislead
him for so long and not recommend him for retirement.  He was even  able  to
test for promotion in February 2002.  Applicant states that he is  angry  at
the Air Force for treating him this way when he has given  so  much  of  his
life to the Air Force.  He worked hard for 20 years and  5  months  for  his
country and the Air Force.  Applicant’s submission, with attachments, is  at
Exhibit G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing  law  or
regulations.
2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of injustice warranting the applicant’s discharge  be  changed  to
retirement.  The  applicant  requests  that  his  involuntary  discharge  be
changed to  a  retirement  for  length  of  service.   In  response  to  the
applicant’s appeal, the Staff Judge Advocate, Air  Force  Personnel  Center,
in her advisory of 18 February 2003, states  that  the  applicant’s  lengthy
service and his service  on  the  flight  line  while  facing  court-martial
charges were mitigating factors that were known to the discharge  board  and
the Secretary of the Air Force when they reviewed  his  case.   Accordingly,
the Staff Judge Advocate believes that there is no error or injustice to  be
corrected as to the reason for the applicant’s discharge.   After  reviewing
the evidence of record and noting the sequence of events  that  led  to  the
applicant’s discharge, the majority of the Board believes that an  injustice
was done to the applicant.   The  Board  majority’s  determination  in  this
matter is based on the fact that despite the fact  that  he  was  undergoing
court-martial and administrative  discharge  proceedings;  he  continued  to
fulfill his duties as Dormitory Manager and later  as  shift  chief  on  the
flight line.  Indeed, prior to the report of the infraction that led to  his
separation, with the exception of several minor infractions, he had  accrued
a record of exceptional service.  It was not until his  discharge  from  the
Air Force that he was taken from the flight line -  in  essence  a  form  of
probation and rehabilitation.   The  applicant  asserts  that  he  tried  to
submit  his  retirement  application;  however,  his  commander  stated  she
couldn’t  sign  his  retirement  application  because  of  Stop   Loss   and
eventually did so at a later date.  In  this  respect,  the  Board  majority
finds the considerable lapse of  time  for  resolving  his  case  troubling,
particularly in  view  of  what  was  at  stake  for  the  applicant,  i.e.,
retirement.  In view of the totality of the circumstances presented in  this
case, the Board majority believes that  to  deprive  the  applicant  of  his
entitlement to receive his retirement  benefits  constitutes  an  injustice.
Based  on  this  belief,  it  is  the  Board  majority’s  opinion  that  the
termination of his service without retirement  benefits  is  unjust  and  by
correcting the record to show he was not discharged  because  of  misconduct
on 8 March 2002 but was retired for  length  of  service  on  1  March  2002
(since the law requires that active duty members retire at the beginning  of
the month), the applicant will be afforded proper and  fitting  relief.   In
the absence of persuasive  evidence  that  the  evidence  contained  in  the
discharge case file is erroneous we are not inclined to recommend  a  change
to  the   applicant’s   service   characterization   of   “under   honorable
conditions.”

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT, be corrected to show that he was not  discharged  on  8  March
2002, under the provisions of AFI 36-3208 but rather, he was  relieved  from
active duty on 28 February 2002 and, effective 1 March 2002, he was  retired
for length of service.
_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 28 May 2003, under the provisions of AFI 36-2603:

      Ms. Patricia D. Vestal, Panel Chair
      Ms. Martha Maust, Member
      Mr. John W. Russell, III, Member

Ms. Vestal and Ms. Maust voted to correct the record  as  recommended.   Mr.
Russell voted to deny but did not desire to submit a  Minority  Report.  The
following documentary evidence was considered:

    Exhibit A.  DD Form 149 dated, 16 October 2002.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 18 Feb 03.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 22 Jan 03 w/atchs.
    Exhibit E.  Letter, AFPC/DPPRS, dated 10 Dec 02.
    Exhibit F.  Letter, SAF/MRBR, dated 21 Feb 03.
    Exhibit G.  Letter, Applicant, dated 10 Mar 03 w/atchs.





                                   PATRICIA D. VESTAL
                                   Panel Chair




AFBCMR 02-03256




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  XXXXXXXXXXXXX,  be  corrected  to  show  that  he  was  not
discharged on 8 March 2002, under  the  provisions  of  AFI  36-3208  but
rather, he was relieved  from  active  duty  on  28  February  2002  and,
effective 1 March 2002, he was retired for length of service.





           JOE G. LINEBERGER

           Director

           Air Force Review Boards Agency