RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03240
            INDEX CODE:  110.02

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His reenlistment (RE) code be changed to one that would allow  him  to
reenlist.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He believes that the Article 15 punishment he received,  that  led  to
his eventual discharge, was  excessive.   He  states  the  Article  15
received for disobeying a direct order shouldn’t have  been  given  at
all.  Only the base commander  or  support  group  commander  has  the
authority to suspend driving privileges.  Air Force Instruction  (AFI)
31-204 and Space Wing Instruction (SWI) 31-109 state that any type  of
formal  suspension  or  revocation  of  driving  privileges  must   be
conferred by written notice.  He was given  a  verbal  statement  only
which he claims interferes with his  private  rights  and/or  personal
affairs.

He believes he would still  be  serving  in  the  USAF  today  if  the
proceedings had not been executed.  It should not have  been  executed
in the first place for such a minor offense (if an  offense  at  all),
and not by one who played the role of accuser, fact  finder,  witness,
and traffic officer.  It should be considered a  breach  of  integrity
and an injustice.

He understands the other Article 15 for getting a tongue ring  and  he
has  learned  from  that  experience.   He  has  exhausted  all  other
resources in fixing  this  problem  by  writing  two  letters  to  two
senators whose best advice was to apply to the Board  of  Corrections.
He plans to finish college at Sacramento State with  a  bachelor’s  in
computer engineering and then pursue a career with the US Marines.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and copies of two legal counsel’s responses to  his  Article
15.

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

_________________________________________________________________




STATEMENT OF FACTS:

Applicant entered active duty on 13 February 2001.  On 9 January 2002,
he received a letter of reprimand  (LOR)  for  illegally  driving  his
motorcycle without a state license, insurance, and  a  certificate  of
completion of the required Motorcycle Safety Foundation course.  On 31
May 2002, he received an LOR for having been issued  multiple  traffic
tickets by AF security forces and the state Highway Patrol for driving
without a license or insurance, passing  on  the  right  shoulder  and
traveling at speeds in excess of 75  mph,  as  well  as  being  in  an
accident from following too closely in traffic.  On 17 June  2002,  he
was issued an LOR as his former commander had  witnessed  him  driving
his motorcycle on base at excessive speeds  and  leaning  too  heavily
into turns.  At this time an Unfavorable Information  File  (UIF)  was
established.  On 19 June 2002, he failed to obey  a  lawful  order  by
driving his motorcycle after being instructed not  to.   Consequently,
he received an Article 15 with punishment consisting of  reduction  in
grade to Airman Basic (AB/E-1), suspended until 9 January 2003, unless
sooner vacated, forfeiture of $100 per month for  two  months  and  14
days additional duty.

In June 2002, he was observed wearing a tongue ring while  in  uniform
in violation of Article 92 of the Uniform  Code  of  Military  Justice
(UCMJ)  and  was  verbally  warned,  counseled,  and  ordered  by  his
supervisor to not wear the ring while in uniform.  On  23  July  2002,
his supervisor observed him wearing the tongue  ring  in  uniform  and
vacated the suspended reduction in grade for disobeying a lawful order
and violating a lawful regulation.  On 9 August 2002,  he  was  pulled
over by base  security  for  traveling  80  mph  in  a  55  mph  zone;
considered reckless driving.  He received  a  traffic  ticket  and  an
Article 15 with punishment consisting of restriction to  base  for  30
days.

On 20 October 2002, his commander recommended he be discharged with  a
general (Under Honorable Conditions) discharge for minor  disciplinary
infractions  at   the   earliest   possible   date.    Probation   and
rehabilitation were considered and not recommended.  The discharge was
found legally sufficient on 20 October  2002  and  he  was  discharged
effective 29 October 2002 after serving 1 year, 8 months, and 17  days
of active military service.  He was discharged with an RE code of  2B,
Separated with a general (Under Honorable Conditions) discharge.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM contends the application is without merit and recommends it
be denied.  Orders, which require the performance of military  duties,
are  presumed  to  be  lawful  when  issued  by  superiors.   In   the
applicant’s application he states the order by his  commander  to  not
drive his motorcycle  for  a  week  had  no  military  connection  and
interfered with his  private  rights  and/or  personal  affairs.   The
applicant was observed riding his




motorcycle in a reckless manner on 17 June  2002.   It  was  for  this
action the applicant was ordered not to drive for a week, and
received a LOR.  He doesn’t directly challenge the  legality  of  this
limited verbal order.  The LOR however, included a new order  revoking
his driving privileges for 30 days - arguably  an  order  in  conflict
with AFI 31-204 - but not the order in issue under  these  facts.   He
implies the 30-day revocation order was the basis for the  Article  15
issued in Jul 2002.  He is incorrect.  The Article 15 does not rely on
the driving revocation but on the commander’s lawful  order  that  the
applicant was not to drive  for  the  period  of  one  week.   In  his
supporting paperwork arguing against the  Article  15,  the  applicant
complains that the choice of Article 92 over Article 90  of  the  UCMJ
was incorrect and therefore invalidated the Article 15.  JAJM  defines
Article  90  as  willful  disobedience  to  a  superior   commissioned
officer’s orders while Article 92 addresses the failure to obey orders
or regulations.  JAJM states that while the use of Article 92 in  this
case may be inartful, it was not illegal or improper.

JAJM contends the applicant should not prevail here absent clear error
or  injustice.   By  electing  to  resolve  the  allegation   in   the
nonjudicial forum, he placed the responsibility  to  decide  his  case
with his commander.  The commander, given that responsibility, had  to
determine an appropriate punishment upon determining the applicant had
committed the offense.  His commander  ultimately  ruled  against  the
applicant, as did the appellate authority.

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.  Nor has he  presented  any  supporting
documentation or argument to justify upgrading the  character  of  his
discharge.

JAJM ’s complete evaluation is at Exhibit C.

AFPC/DPPAE recommends denial.  After review of the  case  file,  DPPAE
states the RE code of 2B is correct.

DPPAE’s complete evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
30 January 2004 for review and comment within 30  days.   As  of  this
date, no response has been received by this office.

_________________________________________________________________




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 an  error  or  injustice  in  regard  to  applicant’s
request that  his  reenlistment  eligibility  be  changed.   Applicant
contests the legality of the Article 15 he received as a result of not
following  a  superior’s  order.   After  a  thorough  review  of  the
documentation provided in support of his appeal and  the  evidence  of
record, it is our opinion that given the circumstances surrounding his
separation from the Air Force, the reenlistment  eligibility  assigned
to the applicant was proper and in  compliance  with  the  appropriate
directives.

4.  Notwithstanding the aforementioned, we  note  the  legal  advisory
from  JAJM  admits  that  the  Article  he  was  charged   under   was
questionable   as   to   its   pertinence   regarding   his   offense.
Additionally,  applicant’s  counsel’s  two   statements   written   as
responses to  the  applicant’s  Article  15  figured  heavily  in  our
deliberations.  The applicant has expressed a desire to enlist in  the
Marine Corps and we believe he should  be  given  the  opportunity  to
apply for enlistment.  Whether or not he is successful will depend  on
the needs of the service and our recommendation in no  way  guarantees
that he will be allowed to  return  to  any  branch  of  the  service.
Therefore, we recommend the applicant's records be  corrected  to  the
extent indicated below.

5.  The applicant's case is adequately documented and it has not  been
shown  that  a  personal  appearance  with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that at  the  time  of  his
discharge from active  duty  on  29 October  2002,  he  was  issued  a
reenlistment eligibility (RE) code of 3K.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 30 March 2004, under the provisions  of  AFI  36-
2603:

      Mr. Frederick R. Beaman, III, Panel Chair
      Mr. Michael J. Maglio, Member
      Ms. Martha J. Evans, Member







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

    Exhibit A.  DD Form 149, dated 22 Sep 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 17 Nov 03.
    Exhibit D.  Letter, AFPC/DPPAE, dated 16 Jan 04.
    Exhibit E.  Letter, SAF/MRBR, dated 30 Jan 04.




                                   Frederick R. Beaman, III
                                   Panel Chair