RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  BC-2003-00560

      (CASE 2)

                                        INDEX CODES:  108.00 111.02,
                                                 126.03, 131.09

                 COUNSEL:  NONE

                 HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

EXAMINER’S NOTE:  Applicant’s requests are somewhat vague; it appears,
in addition to the requests on his DD Form 149, he  is  seeking  other
actions which are contained in various submissions.

1.    He be advanced to the retired grade of staff sergeant  effective
7 June 2003, not June 2002.

2.    His DD Form 214 be corrected in Item 11 by  adding  several  Air
Force Specialty Codes (AFSCs).

3.    His DD Form 214 be corrected to reflect his service  at  various
overseas locations.

4.    The Enlisted Performance Report (EPR) rendered for the period  7
March 1990 through  6  March  1991  be  upgraded  to  “4”  and/or  the
derogatory comments be removed.

5.    The EPR rendered for the period 11 December 1991 through 8 April
1992 be upgraded in the ratings.

6.    He be given a disability  rating  from  the  Air  Force  due  to
hearing loss as a result of an ear cleaning  injury  and  exposure  to
Agent Orange.

7.    The punishment imposed upon him under Article 15,  Uniform  Code
of Military Justice (UCMJ), dated 7 January 1994, be set aside.

Additional Examiner’s note:  HQ AFPC/DPPRSP advised the  applicant  on
21 April 2003, that corrections to his DD Form 214, dated 30 September
1994, were made pertaining to his AFSCs and to his periods of  service
(Items  11,  12a,  12c,  and  12d);  therefore  request  #2  has  been
administratively corrected.  The Board staff  has  been  advised  that
after his records are returned to HQ AFPC, further corrections will be
made to applicant’s DD Form  214  regarding  Foreign  Service  so  his
records will indicate 2 years, 4 months, and 18 days of Total  Foreign
Service.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was separated from the service and returned as a sergeant, with  no
loss of time or grade as his records reflect.  His  DD Form  214  does
not accurately reflect his AFSCs - there are obvious errors on his  DD
Form 214.  He never received feedback on the 6 March  1991  EPR.   The
rating is unfair.  Also, he believes the rating of an overall  “2”  on
the EPR closing 8 April 1992 is unjust.

He was punished  by  having  to  undergo  psychiatric  evaluations  as
intimidation for trying to correct an asbestos  problem  in  his  unit
while in Korea.

He was injured when a Red Cross volunteer improperly cleaned his ear.

Applicant’s complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Delayed Enlistment Program  (DEP)  on  6
July 1972, was discharged on 5 September 1972 and on 6 September 1972,
enlisted in the Regular Air Force (RegAF) for a  period  of  four  (4)
years.

On 24 September 1974, the applicant was notified  of  his  commander's
intent to impose nonjudicial punishment upon  him  for  possession  of
marijuana on or about 14  September  1974,  at  Grissom  AFB,  IN,  in
violation of the Uniform Code of Military Justice (UCMJ), Article 92.

On 25 September 1974, after consulting with counsel, applicant  waived
his right to a trial by  court-martial,  requested  to  make  an  oral
presentation, but did not submit a written presentation.

On 26 September 1974, he was found guilty by his commander who imposed
the following punishment:  forfeiture of $50.00 for two  months.   The
applicant did not appeal.

He was honorably released from active duty on  3  September  1976  and
transferred to the Reserve of the  Air  Force,  effective  4 September
1976.  He served in the Inactive Reserves until his  discharge  on  30
August 1977.  He enlisted in the RegAF on 31 August 1977 for a  period
of four (4) years and on 30 August 1981, he was honorably discharged.

He enlisted in the RegAF on 2 March 1982, in the grade of sergeant (E-
4) for a period of four (4) years and was honorably discharged  on  16
October 1985.  During this enlistment, he was promoted to the grade of
staff sergeant effective and with a date of rank of 1  February  1984.
The applicant reenlisted on 17 October 1985  in  the  grade  of  staff
sergeant for a period of four  (4)  years.   He  contracted  his  last
enlistment on 25 July 1989, in the  grade  of  staff  sergeant  for  a
period of four (4) years.

On 6 August 1993, the applicant was tried by Special Court-Martial  at
Minot AFB, ND, for wrongful use of marijuana on or  about  25  January
1993 to 3 February 1993, in violation of Article 112a, UCMJ.   He  was
found guilty and sentenced to confinement for six months and reduction
to the grade of airman first class.

On 10 December 1993, while in confinement, the applicant was  notified
of his commander's intent to impose nonjudicial  punishment  upon  him
for six charges of assault, dereliction of duty,  disorderly  conduct,
and showing disrespect to a non-commissioned officer.

The applicant was released from confinement  on  5  January  1994  and
returned to duty.

On 6 January 1994, after consulting with counsel, applicant waived his
right to a trial by court-martial and requested a personal  appearance
and submitted a written presentation.

On 7 January 1994, he was found guilty by his  commander  who  imposed
the following punishment:  reduction to the grade of airman, effective
7 January 1994.  The applicant appealed the punishment;  however,  the
commander recommended to the  appeal  authority  that  it  be  denied,
stating he found the applicant guilty of four of the six  charges  and
the applicant admitted to committing these four charges.   The  appeal
was denied.

On 28 January 1994,  the  applicant  requested,  as  an  exception  to
policy, he be allowed to retire during  the  fiscal  year  1994  Early
Retirement Program as an airman with over 19 years, 6 months of  total
active military duty served.  Both the squadron commander and Military
Flight Commander (MPF) commander concurred in his request since he was
not afforded the  opportunity  to  request  early  retirement  due  to
confinement.

On 13 May 1994, the applicant was advised of his commander’s intent to
recommend his discharge for misconduct, specifically, drug  abuse,  in
accordance with AFR 39-10, paragraph 5-51.  The commander  recommended
a general discharge and cited the court-martial as the basis  for  the
action.  He was advised of his rights, to include presenting his  case
to an Administrative Discharge Board (ADB).

An ADB was convened on 3 August 1994 at Minot AFB,  ND,  to  determine
whether discharge prior to  the  applicant’s  expiration  of  term  of
service  was  appropriate.   After  evidence  was  presented  by   the
government and the applicant, who was represented  by  legal  counsel,
the ADB recommended the applicant be retained  on  active  duty.   The
discharge authority approved the results of the ADB and  directed  the
applicant be retained on active duty.

On 28 September 1994, the Secretary of  the  Air  Force  directed  the
applicant be advanced only to  the  higher  grade  of  sergeant  (E-4)
pursuant to Section 8964, Title 10, United  States  Code  (10USC)  and
directed  his  advancement  to  that  grade  effective  the  date   of
completion of all required service.

The applicant was voluntarily retired in the grade  of  airman  (E-2),
effective 1 October 1994.  He served 20 years, 6 months, and  27  days
of net active duty, with time lost during the period 6 August 1993  to
5 January 1994, for total active service of 20 years, 1 month, and  27
days.  The applicant will be advanced on the retired list to the grade
of sergeant effective 4 August 2004.

A resume of the applicant's performance reports since 1982 follows:


      PERIOD ENDING    OVERALL EVALUATION


                             11 Aug 82       8

                              5 Apr 83       8
                              5 Apr 84  Not in the official record
                              5 Apr 85       8
                              6 Mar 86       8
                              6 Mar 87       9
                              6 Mar 88       9
                              6 Mar 89       8
                              6 Mar 90       4 (New system)
                 *      6 Mar 91        3
                 *      8 Apr 92        2 (Referral)
                             11 May 93       2

*Contested Reports.

During the applicant’s military service, he was treated for a  variety
of medical conditions which are  discussed  in  the  advisory  opinion
provided by the AFBCMR Medical Consultant at Exhibit J.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ  AFPC/DPPAC  states  a  review  of  the   documentation   submitted
substantiates the applicant’s claim that Item 11 does not reflect  all
of  the  AFSCs  he  performed  while  on  active  duty.   The  records
substantiates he not only performed duty in 3M052, but also  in  30651
and 46150.  He never performed duty in 2W051.   Further,  the  records
also reflect the  periods  of  service  for  the  AFSCs  in  which  he
performed  differ  from  the  periods  indicated  in  Item  11.   They
recommend changes to Item 11 of the DD Form 214, as follows:  3M051  -
Morale, Welfare Recreation and Services Journeyman, 2 years, 6 months;
46150 - Munitions Systems Specialist, 13 years, 9 months; and 30651  -
Electronic - Mechanical  Communications  and  Cryptographic  Equipment
Systems Specialist, 3 years, 11 months.

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

EXAMINER’S NOTE:  A DD Form 215 has been issued making these changes.

HQ AFPC/DPPRRP reviewed the application  with  respect  to  retirement
processing and recommended denial.  They give a chronological  listing
of the applicant’s service and indicate the time the  applicant  spent
in the DEP, the Inactive Reserves, and confinement is  not  creditable
time for advancement purposes.  Also, from 31 August 1981 to  1  March
1982, the applicant was not affiliated with  any  branch  of  military
service.  The highest grade the applicant held while  on  active  duty
was staff  sergeant.   Based  on  the  chronological  listing  of  his
military service, the applicant accumulated a total  of  20  years,  6
months, and 27 days active military service, however, the five  months
spent in confinement had to be made good so his active service totaled
20 years, 1 month, and 27 days.  They state Section  8964,  Title  10,
United States Code (10USC) allows advancement  of  enlistment  members
(when their active service plus service on the retired list totals  30
years) on the retired list to the highest grade in which  they  served
satisfactorily as determined by the Secretary of the Air Force  (SAF).
SAF has delegated this authority to the SAF Personnel Council (SAFPC).
 SAFPC determined on 28 September 1994, that  the  applicant  did  not
serve satisfactorily in any  higher  grade  than  sergeant  (E-4).   A
review of the applicant’s master personnel records revealed  an  error
on Special Order AC-000098,  which  amended  the  original  retirement
order (AC-024717).  Special Order AC-000098 directed that effective  7
June 2003, the applicant would be advanced to the grade of sergeant on
the retired list.  The advancement effective date of 7 June  2003  was
incorrect based on  the  applicant’s  Total  Active  Federal  Military
Service Date (TAFMSD) of  4  August  1974.   The  applicant  will  not
complete 30 years service until 3 August 2004 and will be advanced  to
the grade of sergeant effective 4 August 2004.  A  special  order  has
been issued correcting the error.  In summary, there are no provisions
of law to grant credit for  unserved  service,  nor  do  they  support
awarding the applicant credit for over two years of active service  to
permit advancement on the retired list  effective  7 June  2002.   All
criteria of the law have been met in this regard and corrective action
has  been  taken  to  correct  the  applicant’s  effective   date   of
advancement from 7 June 2003 to 4 August 2004.

A complete copy of the evaluation, with attachments,  is  attached  at
Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

After reviewing the evaluations, the applicant  states  he  should  be
promoted to the grade of staff sergeant  at  the  30-year  point.   He
continues by relating a myriad of issues to include, but  not  limited
to problems at Minot AFB and Kunsan Air  Base,  Korea,  forms  missing
from his records, being sent on a short notice tour to keep  him  from
contesting an unjust EPR, safety problems in his unit in Korea, an ear
injury while assigned  to  Minot  AFB  leading  to  a  change  in  his
personality, and being by-passed for promotion.  Due to the stress  of
his situation, he made a bad mistake for which he was court-martialed,
but was retained.  He states he did excellent work yet  was  by-passed
for promotion.  He feels he was punished for contesting an EPR.

Applicant’s  complete  response,  with  attachments,  is  attached  at
Exhibit F.

By  application,  dated  8  September  2003,  the  applicant  provided
additional documentary evidence for the Board’s  consideration,  which
is attached at Exhibit H.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the application with respect  to  the  applicant’s
court-martial on 6 August 1993 and recommends denial.  They state  the
approved sentence  was  well  within  the  legal  limits  and  was  an
appropriate   punishment   for   the    offenses    committed.     The
appropriateness of the sentence is a matter within the  discretion  of
the court-martial and may be mitigated by the convening  authority  or
within the course of the appellate review process.  The applicant  was
afforded all rights granted by statute  and  regulation.   As  a  non-
commissioned officer, he had a duty to serve as an example  to  airmen
of lesser rank.  Through his use of marijuana, he betrayed  his  duty,
not only to the Air Force, but to his family and himself.   It  should
be noted the applicant’s record of service was not unblemished as  his
records  reflect  he  had  previously  received  an  Article  15   for
possession of marijuana in 1974.

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

The AFBCMR Medical Consultant reviewed the application with respect to
the medical concerns raised by the applicant and indicates  no  change
to the records is warranted based on medical issues.   The  Consultant
indicates the applicant links poor duty performance and  his  decision
to use marijuana to cognitive impairment caused by exposure  to  toxic
fumes, right ear pain, and  medications.   The  preponderance  of  the
evidence does not support a conclusion that  toxic  fumes  caused  the
applicant’s decline  in  duty  performance  or  his  decision  to  use
marijuana.  The medications used for  the  ear  pain,  in  the  latter
years, eardrops, do not cause cognitive or judgment difficulties.  The
applicant experienced symptoms of hay fever  (allergic  rhinitis)  for
which he used over-the-counter antihistamine/decongestant  medications
(Contact) and was prescribed similar medications  by  his  physicians.
Some of these medications were documented to cause some drowsiness  in
the applicant, but he tolerated one medication without drowsiness  and
was also prescribed a new non-sedating antihistamine.  He was aware of
the side effects and was able to avoid those that caused side  effects
and obtain those that did not.  There is no evidence  in  the  medical
record that shows any concern about  chronic  side  effects  affecting
duty performance due to these medications or  a  requirement  to  take
them on a daily basis.  Lastly, the applicant was treated episodically
with  non-steroidal  anti-inflammatory   medications   (aspirin   like
medications - Motrin used almost exclusively) primarily  for  shoulder
pain.  He was treated in January 1991 with a medication that can cause
side  effects  including  depressed  mood,  dizziness,  headache,  and
fatigue, thus impairing duty performance, however, he was not  treated
with this medication on a frequent  or  chronic  basis.   Motrin  only
rarely causes these types of side effects  and  mild  effects  do  not
affect duty performance.  When severe enough  to  affect  occupational
functioning,  patients  report  such  symptoms  to  their  physicians.
Evidence of record shows episodic treatment and not chronic  treatment
with these medications and the sustained problems he  experienced  are
not attributable to these medications.

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

HQ AFPC/DPPPE reviewed the application regarding  the  EPR  issue  and
strongly recommends denial to change the rating on the EPR  closing  6
March 1991 from a “3” to a “4.”  Further, there is no justification to
delete any verbiage on this same report.  After an in-depth review  of
the records, the rating and comments are consistent with  each  other.
The applicant has provided no evidence to support his allegation;  nor
has he provided justification to change the rating from  a  “3”  to  a
“4.”  This point is actually moot since ratings and  expectations  can
change from each reporting period, nor are ratings for  one  reporting
period  dependent  upon  a  previous  report.   They  do  not  make  a
recommendation regarding the EPR closing 8 April 1992 because they can
find nothing contesting this report.

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

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

After reviewing the additional evaluations, he states he is submitting
documentation showing he never admitted to the offenses in the Article
15.  He is submitting information  from  the  Department  of  Veterans
Affairs  (DVA)  showing  service  connection   for   several   medical
conditions.  He further submits documentations  from  mid  and  senior
level enlisted members plus  officers  demonstrating  his  skills  and
abilities thereby showing  the  contested  EPRs  are  inaccurate.   He
questions  the  merit  of  the  Article  15  he  received   while   in
confinement.

Applicant’s  complete  response,  with  attachments,  is  attached  at
Exhibit M.

_________________________________________________________________

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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the merits of his  requests
he be advanced to the retired grade of staff sergeant effective 7 June
2003, and he be given an Air Force disability rating.  Notwithstanding
his  assertions  concerning  these  requests,  we  do  not  find   the
documentation  presented  in  support  of  his   appeal   sufficiently
persuasive to override the rationale provided by the Air Force offices
of primary responsibility (OPRs).  Based on this reason,  and  in  the
absence of sufficient evidence to the  contrary,  we  agree  with  the
recommendation of the OPRs and adopt their rationale as the basis  for
our decision that the applicant has failed to sustain  his  burden  of
establishing that he has suffered either an  error  or  an  injustice.
Accordingly, his requests are not favorably considered.

4.  Concerning his request the Article 15 dated 7 January 1994 be  set
aside, the evidence of record reflects  that,  after  considering  all
matters presented by the applicant, his commander determined  that  he
had committed one or more  of  the  offenses  alleged,  and  made  the
decision to impose  nonjudicial  punishment  under  Article  15.   The
applicant appealed the punishment but it was denied.  We choose not to
disturb the discretionary judgments of commanding  officers,  who  are
closer to events, absent a strong showing of abuse of that  authority.
Therefore, in the  absence  of  persuasive  evidence  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  compelling  basis
exists to recommend granting the requested relief.

5.  Regarding his request his 6 March 1991 EPR be upgraded or  removed
and his 8 April 1992 EPR be upgraded,  we  note  that  evaluators  are
required to assess a ratee’s performance, honestly and to the best  of
their  ability,  based  on  their  observance   of   an   individual’s
performance.  No evidence has been presented which has  shown  to  our
satisfaction  the  applicant’s  evaluators  were  unable   to   render
accurate,  unbiased  evaluations  of  his  performance,  or  that  the
contested reports were based on factors  other  than  the  applicant’s
duty performance during the contested rating  periods.   Additionally,
we found no evidence the contested reports were prepared  contrary  to
the governing regulation nor did we find a rater’s failure to  conduct
counseling or feedback sessions to be a sufficient basis to invalidate
a report.  In view of the foregoing, and in the absence of evidence to
the contrary, we find  no  compelling  basis  to  recommend  favorable
action on the applicant’s requests.

6.  It appears the applicant’s request pertaining  to  his  AFSCs  has
been resolved administratively.  We further note the Board  staff  has
been advised his request that his DD Form 214 be corrected to  reflect
his service at  various  overseas  locations  will  also  be  resolved
administratively once his  records  are  returned  to  the  Air  Force
Personnel Center.   In  view  of  the  above,  no  further  action  is
necessary regarding these requests.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 AFBCMR Docket Number BC-
2003-00560 in Executive Session on 22 April 2004, under the provisions
of AFI 36-2603:

      Mr. Robert S. Boyd, Panel Chair
      Mr. John B. Hennessey, Member
      Mr. Jay H. Jordan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 February 2003, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPAC, dated 4 April 2003.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 9 May 2003, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 23 May 2003.
    Exhibit F.  Letter, applicant, dated 3 June 2003, w/atchs.
    Exhibit G.  Letter, AFBCMR, dated 2 September 2003.
    Exhibit H.  DD Form 149, dated 8 September 2003, w/atchs.
    Exhibit I.  Letter, AFLSA/JAJM, dated 8 October 2003.
    Exhibit J.  Letter, Medical Consultant, dated 5 January 2004.
    Exhibit K.  Letter, AFPC/DPPPE, dated 3 March 2004.
    Exhibit L.  Letter, SAF/MRBR, dated 5 March 2004.
    Exhibit M.  Letter, applicant, dated 31 March 2004, w/atchs.





                                   ROBERT S. BOYD
                                   Panel Chair