RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03391
            INDEX CODE:  110.00, 111.02, 126.04

            COUNSEL:  AMERICAN RED CROSS

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

His general discharge be  upgraded  to  an  honorable  discharge;  the
Article 15 actions and reprimands be set aside and expunged  from  his
records;  and,  his  Enlisted  Performance  Report  (EPR),  closing  2
September 1990, be declared void and removed from his records.

His grade of technical sergeant (E-6) be restored and he be considered
for promotion to the grade of master sergeant (E-7).

He be awarded back pay and full retirement benefits, as well as a full-
time federal job and restoration of his security clearance.

_________________________________________________________________

APPLICANT CONTENDS:

He  raises  a  number  of  issues  from  his  court-martial  in  1991.
Specifically,  he  challenges  the  admission  into  evidence  of  the
contested  EPR,  the  propriety  of  the  offered  Article   15,   the
consideration of post-trial  evidence  in  sentencing,  “fabrications”
made by a security policeman and the severity of the punishment.

He believes the contested EPR is not valid  because  it  violates  the
rules set forth in AFR 39-62 regarding the days of supervision  for  a
commander-directed report.

In support of his request, the applicant submits a personal  statement
and additional documents associated  with  the  issues  cited  in  his
contentions.  The applicant’s complete submission, with attachment(s),
is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date (TAFMSD) is
23 October 1973.  He  was  progressively  promoted  to  the  grade  of
technical sergeant (E-6), with  an  effective  date  of  1  May  1985.
Pursuant to a Special Court-Martial, the applicant was reduced to  the
grade of airman basic (E-1).

Applicant's Airman/Enlisted Performance Report (APR/EPR) profile while
serving in the grade of technical sergeant (E-6) follow:

            Period Ending    Evaluation

              2 Dec 85   8
             13 Aug 86   9
             13 Aug 87   9
             13 Aug 88   9
             13 Aug 89   8
              3 May 90 (Referral)   1-Not Recommended for Promotion
            * 2 Sep 90 (Referral)   1

* Contested report

The applicant’s  3  January  1991  record  of  nonjudicial  punishment
(Article 15) for dereliction in the performance of his duties in  that
he willfully failed to refrain from driving while his driving  license
was suspended, on or about 22  December  1990,  was  withdrawn  on  14
January 1991 and a new Article 15 was presented.

On 14 January 1991, applicant was notified of his  commander's  intent
to impose nonjudicial punishment for the following alleged misconduct,
on or about 22 December 1990:  dereliction in the performance  of  his
duties in that he willfully failed to refrain from driving  while  his
driving license was suspended; operation of  a  vehicle  while  drunk;
disorderly; and, failure to obey an order to submit to a blood alcohol
test.  Apparently,  the  applicant  demanded  trial  by  court-martial
rather than accept the Article 15.

On 28 February and 1 March 1991, applicant was tried before a  special
court-martial at Travis AFB, CA.  He pled not guilty  to  the  charges
and specifications of driving under the  influence  (DUI),  drunk  and
disorderly conduct and disobeying a lawful order.  He was found guilty
of the charges and specifications and ultimately sentenced  to  a  bad
conduct discharge (BCD) and a reduction to the grade of  airman  basic
(E-1).  After the legal reviews and appeals to the Air Force Court  of
Criminal Appeals, the applicant’s discharge became effective.

A letter from the local base Alcoholism Rehabilitation  Center,  dated
23 April 1991, reveals that the applicant was  an  inpatient  at  this
center from 29 March 1991 and was scheduled to  successfully  complete
treatment on 26 April 1991.

On 31 May 1991, the applicant received a Letter of Reprimand  for  his
involvement in a domestic disturbance in the housing area on 23  March
1991 - accused of assault and battery with a  deadly  weapon  (alcohol
related incident); on 25 March 1991, drunk on  station  (charged  with
being disorderly and disobeying a lawful order);  on  27  March  1991,
drunk on station (charged with disobeying a lawful order and violation
of a civil restraining order); and,  on  23  May  1991,  charged  with
illegal  entry  onto  base.   Applicant’s  commander  established   an
Unfavorable Information File (UIF) and the LOR, with  the  applicant’s
comments and attachments, were filed in the UIF.

Effective 16 July 1991, the applicant was placed in an unpaid,  excess
leave status pending completion of  appellate  review  of  his  court-
martial conviction.

On 8 October 1996, the applicant applied for  retirement  in  lieu  of
discharge.  The Office of the Secretary of the Air  Force  denied  his
application on 16 June 1997.

In accordance with Special Court-Martial Order  No.  9,  dated  3 June
1998,  the  applicant’s  sentence  of  a  bad  conduct  discharge  and
reduction to the grade of airman basic (E-1) was affirmed, and the bad
conduct discharge was executed.

The applicant received a BCD on 23 June 1998 under the  provisions  of
Special Court-Martial Order No. 9 (court-martial).  He had completed a
total of 24 years, 8 months and  1  day  of  active  service  and  was
serving in the grade of airman basic (E-1) at the time of discharge.

On 4 September 2002, the applicant appealed to the Air Force Discharge
Review Board (AFDRB) requesting upgrade of his bad  conduct  discharge
to honorable.  On 19 June 2003, the AFDRB denied  applicant’s  request
for upgrade  of  his  discharge  to  honorable;  however,  they  found
sufficient mitigation  to  upgrade  the  discharge  to  general.   The
applicant was notified of the  AFDRB  decision  with  a  copy  of  the
reaccomplished  DD  Form  214  showing  the  characterization  of  his
discharge as under honorable conditions  (general).   A  copy  of  the
AFDRB Hearing Record is appended at Exhibit C.

Pursuant to the Board's request, the Federal Bureau of  Investigation,
Clarksburg, WV, provided an investigative report which is attached  at
Exhibit D.
_________________________________________________________________

AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application  be  denied.   JAJM  provided  a
summary of the court-martial proceedings/appeals.  JAJM  states  that,
apart from being untimely, the  application  as  it  pertains  to  the
conduct of the court-martial is also without merit.  Under 10  U.S.C.,
Section 1552(f), the AFBCMR’s ability to correct  records  related  to
courts-martial is limited.  There is no legal basis for the  requested
relief.   Applicant  had  the  assistance  of  counsel  in  presenting
extenuating and mitigating matters in their most  favorable  light  to
the court and the convening authority.  These matters were  considered
in review of the sentence.  Applicant was  thus  afforded  all  rights
granted by statute and regulation and provides no compelling rationale
to grant the relief requested.  Applicant was  found  guilty  of  DUI,
being drunk and disorderly and disobeying a lawful order.  The maximum
punishment  for  these  three  offenses  together  is  a  dishonorable
discharge, forfeiture of all pay and allowances and confinement for up
to five  years  and  nine  months.   Thus,  a  general  discharge  and
reduction in rank was well within the  legal  limits  and  appropriate
punishment for the offenses  committed.   The  applicant  presents  no
compelling rationale for any relief.   He has identified no  error  or
injustice related to his  prosecution  or  sentence.   The  AFLSA/JAJM
evaluation is at Exhibit E.


HQ AFPC/DPPRS recommends the  application  concerning  the  separation
processing be denied.  DPPRS states that, based upon the documentation
on  file,  the  discharge  was  consistent  with  the  procedural  and
substantive requirements of the discharge regulation.   The  discharge
was within the discretion of the discharge authority.   His  discharge
was upgraded to a general discharge (under  honorable  conditions)  by
the AFDRB on 19 June 2003.  The  applicant  did  not  submit  any  new
evidence or identify any errors or injustices  that  occurred  in  the
discharge processing.  He provided no other facts warranting a further
upgrade of the discharge.  The AFPC/DPPRS evaluation is at Exhibit F.


HQ AFPC/DPPPE recommends the application concerning the contested  EPR
be denied.  DPPPE states that the applicant is claiming that  both  he
and his rater were on leave for periods of 30 days or more during  the
rating period, which was not subtracted from the  number  of  days  of
supervision.  In accordance with AFR  39-62,  “Referral  EPRs  do  not
require HQ AFMPC/CCXA approval if the period of supervision is  60  or
more calendar days.”  Hence, even if the applicant can  provide  proof
that both he and his rater were on leave for 30 consecutive days,  the
number of days supervised would still be 62--more than the required 60
as indicated in the governing Air Force regulation.  The applicant did
submit his copy of the leave form; however, there is no  documentation
from DFAS to prove he actually took the 30 days of leave.  Even if the
applicant can prove the leave was taken, there was still a  sufficient
number of days to render the referral report according to the  AFR  in
effect at that time.  The AFPC/DPPPE evaluation, with  attachment,  is
at Exhibit G.


HQ AFPC/DPPPWB addresses the promotion issue.  DPPPWB states that  the
applicant tested for promotion to master sergeant (E-7) for cycle 92A7
on 5 March 1991.  This was the first cycle  the  contested  EPR  would
have normally been considered in the promotion process.   On  1  March
1991, he was convicted by Special Court-Martial, reduced to the  grade
of airman basic and received a BCD, which rendered him ineligible  for
promotion consideration in accordance with  the  governing  Air  Force
regulation.   The  AFPC/DPPPWB  evaluation,  with  attachment,  is  at
Exhibit H.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the Air Force evaluations were forwarded to applicant on  27
February 2004 for review and response.  As of this date,  no  response
has been received by this office (Exhibit I).

The applicant reviewed the FBI report and provided his response to the
charges listed.  The applicant’s complete submission, with attachment,
is at Exhibit J.
_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application concerning the discharge upgrade was timely filed.
 The application concerning the remaining issues 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  with  respect  to  the  discharge
action, the Article 15 actions  and  reprimands,  the  contested  EPR,
restoration of E-6 grade and  E-7  promotion  consideration,  and  the
requests for federal employment and restoration of security clearance.
 The applicant’s assertions concerning the evidence considered  during
his court-martial, the conduct of the trial, and the propriety of  his
conviction have been noted.  It appears to us that,  ultimately,  such
assertions go to the legal sufficiency of the findings of the military
court.  With respect to these matters, we are constrained to note that
this Board is not empowered to set-aside or reverse  the  findings  of
guilty by a court-martial.   Rather,  in  accordance  with  Title  10,
United States Code, Section 1552(f), actions by this Board are limited
to corrections to the record to reflect actions taken by the reviewing
officials and action on the sentence  of  the  court-martial  for  the
purpose of clemency.  Evidence has not been presented which would lead
us to believe that  the  contested  disciplinary  actions,  evaluation
report, and the separation actions taken against  the  applicant  were
improper, based on erroneous information, or that they represented  an
abuse of discretionary authority.  In this regard, we are in agreement
with the Air Force  assessments  of  these  matters  and  adopt  their
conclusions as our findings in this case.  The applicant’s contentions
have been duly noted.  However, other  than  his  own  self-supportive
statement, neither does the record reveal  nor  has  he  provided  any
documentary  evidence,  which  successfully  refutes  the  Air   Force
opinions concerning the propriety of the actions taken.   Accordingly,
with the exception of the matter discussed below, we are not  inclined
to favorably consider the applicant’s stated requests.

4.  Notwithstanding the above, after reviewing the evidence of record,
to include the Air Force Discharge  Review  Board  (AFDRB)  action  to
upgrade the applicant’s discharge to general, we believe the applicant
should be allowed to retire on the basis of clemency.  In this regard,
we are aware that we have an  abiding  moral  sanction  to  determine,
insofar as possible, the true nature of an alleged  injustice  and  to
take steps to grant thorough and fitting relief.  We noted that, prior
to the infractions that led to the disciplinary actions, the applicant
had  an  outstanding  Air  Force  career  and  performed  his   duties
faithfully for approximately 17 years.  In light  of  the  applicant’s
exemplary career of military service during that time, we are inclined
to believe that favorable consideration of his request for  retirement
is warranted as a matter of  clemency.   Further,  we  believe  it  is
significant that, had the applicant accepted  the  Article  15  action
rather than demand trial by court-martial, the nonjudicial  punishment
would have carried a significantly less severe  punishment  than  that
imposed by the court-martial.  In view of the evidence before  us,  we
find it difficult to believe that, had the applicant  been  fully  and
properly counseled, he would  have  elected  a  course  of  action  so
contrary to his own best interests.  In view of the above, it  is  our
opinion that to cause him to carry the stigma of a discharge based  on
his court-martial conviction would be an injustice to  the  applicant.
The applicant will be entitled to back  pay  and  allowance,  and  any
other entitlements as determined appropriate by  the  Defense  Finance
and Accounting Service (DFAS) based on the language of the  correcting
instrument.  Therefore, we recommend that the 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 issues involved.
_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

      a.  On 4 June 1998, competent authority remitted so much of  the
sentence of the Special Court-Martial, adjudged on 1  March  1991  and
affirmed on 3 June 1998, which provided for a bad conduct discharge.

      b.  He was not discharged on 23 June 1998, but was continued  on
active duty until 30 June 1998, on which date  he  was  released  from
active duty and retired, under honorable conditions (general), in  the
grade of airman basic (E-1), effective 1 July 1998.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 29 July and 5 October 2004, under the  provisions
of AFI 36-2603:

                  Mr. Richard A. Peterson, Panel Chair
                  Ms. Kathleen F. Graham, Member
              Mr. Vance E. Lineberger, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary  evidence  was  considered  in  connection  with
AFBCMR Docket Number BC-2003-03391.

   Exhibit A.  DD Form 149, dated 30 Sep 03, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  AFDRB Hearing Record, dated 19 Jun 03.
   Exhibit D.  FBI Identification Record.
   Exhibit E.  Letter, AFLSA/JAJM, dated 14 Nov 03.
   Exhibit F.  Letter, HQ AFPC/DPPRS, dated 27 Jan 04.
   Exhibit G.  Letter, HQ AFPC/DPPPE, dated 9 Feb 04,
               w/atch.
   Exhibit H.  Letter, HQ AFPC/DPPPWB, dated 18 Feb 04.
   Exhibit I.  Letters, SAF/MRBR, dated 27 Feb 04, and
                   14 Sep 04.
   Exhibit J.  Letter from Applicant, undated, w/atch.




                                   RICHARD A. PETERSON
                                   Panel Chair



AFBCMR BC-2003-03391




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:

          a.  On 4 June 1998, competent authority remitted so  much
of the sentence of the Special Court-Martial, adjudged on  1  March
1991 and affirmed on 3 June 1998, which provided for a bad  conduct
discharge.

          b.  He was not discharged on 23 June 1998, but was continued
on active duty until 30 June 1998, on which date he was released  from
active duty and retired, under honorable conditions (general), in  the
grade of airman basic (E-1), effective 1 July 1998.




            JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency