RECORD OF PROCEEDINGS


         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-03747
            INDEX CODE:  106.00, 110.02
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

The disobeying a direct order  charge  charge  be  dismissed  and  his
reenlistment (RE) code be changed to allow enlistment in the Reserves.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He got a haircut as ordered by his commander and reported as directed,
but his commander was out of his office.  He left a message  with  the
commander’s secretary,  however  she  never  gave  the  commander  the
message.  He worked the night shift and was scheduled for parades  and
day duties just to harass him.  Due to lack  of  sleep,  he  overslept
once and was late for work.

In support of his request, applicant provided a personal statement.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered into the Air Force on 16  August  1974  and  was
progressively promoted to the grade of  airman  first  class.   On  16
November  1976,  he  was  notified  by  his  commander  that  he   was
recommending that he be discharged from the Air Force.  The basis  for
this action was that on 14 August 1976 and 4 Sep 1976, he failed to go
at the time prescribed to his appointed place of duty and he  received
two letters of reprimand.  On 15 September 1976, he  was  served  with
nonjudicial punishment under Article 15, for  failure  to  go  to  his
appointed place of duty  on  4  September  1976.   The  applicant  was
informed of his rights concerning the Article 15 and he elected not to
submit  matters  in  his  own  behalf.   He  did  not  make  an   oral
presentation in his defense, did not demand trial by court-martial and
he did not appeal the punishment of extra duty for 14 days as  imposed
by the Squadron Section Commander.  The applicant was separated on  24
November 1976, under the provisions of AFR 39-10, Chapter  3,  Section
B,  (Marginal  or  Nonproductive  Performer  While  Assigned   to   an
Organizational Unit) and received an honorable discharge.   He  served
two years and three months and nine days on active duty.

Pursuant to the Board's request, the Federal Bureau of  Investigation,
Clarksburg, WV, indicated on 28 April 2004, that on the basis  of  the
data furnished they were unable to  locate  an  arrest  record.   (See
Exhibit G)

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends  denial.   The  applicant  accepted  nonjudicial
punishment proceedings, effectively waiving  his  right  to  demand  a
trial by court-martial.  By electing to resolve the allegation in  the
nonjudicial forum, the applicant agreed to let  his  commander  decide
whether he had committed  the  offense,  instead  of  a  court-martial
panel.  The commander ultimately resolved the issue of whether or  not
he had committed  this  offense  against  the  applicant.   There  was
sufficient evidence for the commander to determine that the  applicant
had willfully  failed  to  go  to  his  appointed  place  of  duty  on
4 September 1976.  The punishment the commander chose  to  impose  was
lawful and he deemed it warranted under all  the  circumstances.   The
applicant did not appeal that punishment.  The applicant has  provided
no evidence of a clear error or injustice related to  his  Article  15
action.   He  provided  no  information  for  consideration   by   his
commander.  The evidence supports his commander’s  determination  that
the applicant failed to go.  The imposition of 14 days of  extra  duty
was a permissible  punishment  and  was  warranted  in  light  of  the
applicant’s disciplinary record.

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPRS recommends denial.  Based on the documentation on file, the
discharge  was  consistent  with  the   procedural   and   substantive
requirements of the discharge regulation and the discharge was  within
the discretion of the discharge  authority.   The  applicant  did  not
submit any new evidence or identify  any  errors  or  injustices  that
occurred in the discharge proceedings.  Applicant  provided  no  facts
warranting a change in his reenlistment code.

The DPPRS evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The  applicant  states  that  the  whole  incident  occurred  over   a
miscommunication with the commander’s secretary  and  being  late  for
work twice in two years.  If  the  matter  was  so  important  to  the
commander, then why did he not meet him in person rather than  have  a
civil servant do his job for him.  The advisory opinion only  reflects
information researched in old files when questions should be  directed
to the commander involved.  His whole military career was brought to a
halt due to minor offenses with very little evidence to support  their
case in a real court of law.

His complete response 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.  Insufficient relevant evidence has been presented  to  demonstrate
the existence of an error  or  injustice  to  warrant  dismissing  the
“disobeying a direct order” charge or changing  his  RE  code.   After
careful  consideration  of  the  available  evidence,  we   found   no
indication that  the  actions  taken  to  affect  his  discharge  were
improper or contrary to the provisions of the governing regulations in
effect at the time, or that the actions taken  against  the  applicant
were based on factors other than his own  misconduct.   Therefore,  we
agree with the opinions and recommendations of the Air  Force  offices
of primary responsibility and adopt their rationale as the  basis  for
our conclusion that the applicant has not been the victim of an  error
or injustice.  Therefore, in the absence of evidence to the  contrary,
we find no compelling basis to recommend granting the relief sought in
this application.

_________________________________________________________________

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 Docket  Number  BC-2003-
03747 in Executive Session on 25 May 2004, under the provisions of AFI
36-2603:


                 Mr. Robert S. Boyd, Panel Chair
                 Mr. James E. Short, Member
                 Mr. Albert C. Ellett, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 5 Nov 03.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, dated 8 Dec 03.
      Exhibit D. Letter, AFPC/DPPRS, dated 27 Jan 04.
      Exhibit E. Letter, SAF/MRBR, dated 6 Feb 04.
      Exhibit F. Letter, Applicant’s response, dated 16 Feb 04.
      Exhibit G. FBI Response, dated 28 Apr 04.





      ROBERT S. BOYD
      Panel Chair