RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00211

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His nonjudicial punishment under Article 15 of  the  Uniform  Code  of
Military Justice (UCMJ) be set aside,  his  general  (under  honorable
conditions)  discharge  be  upgraded  to  honorable,  and   his   “2B”
reenlistment eligibility (RE) code be changed so that he may reenlist.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 21 December 1992, he received an Article 15 for  failure  to  show.
At that time, he had a bona fide medical condition  in  which  he  was
taking painkillers.  These medications were causing him to over sleep,
which altered his perception by not allowing him to comprehend exactly
how his injury and medications were affecting his duty performance.  A
change in medications would have been helpful.  At the  time,  he  was
not sleeping well due  to  family  matters,  and  chronic  knee  pain;
however,  fatigue  and  the  medications  were  the  main   cause   of
oversleeping.  If  he  had  been  given  the  opportunity  to  seek  a
different medical remedy for  medications,  he  would  not  have  been
taking the Indocin.  Indocin causes drowsiness.  The Article 15 led to
an AFR 39-10 Administrative Discharge.  His  discharge  was  based  on
minor disciplinary infractions.  Most of the charges  were  documented
as  not  his  fault.   One  of  the  charges  was   involving   escort
responsibilities.  He had a letter from the MSgt who had relieved  him
of responsibility when he met with his area defense  lawyer.   He  was
told to write something up and she would look at  it.   He  was  never
told that he needed sworn statements to counter  the  charges  he  was
facing and his defense lawyer offered no assistance or advise.  He was
given the belief that there was nothing he could do to fight  the  AFR
39-10 discharge.  He was told very little about what he  could  do  to
fight the discharge.  If any of the letters he submitted in the AFR 39-
10 had been taken into account, he would not have  been  considered  a
screw-up and a lost cause. His career would have been salvageable.  He
received a good conduct medal right before his  discharge.   He  feels
this does not show his entire service was bad.  He feels  that  if  he
had  been  aware  and  given  better  counsel,  he  could  have   made
corrections  to  his  performance  and  took  responsibility  for  his
actions.  He is not responsible for the actions of the  people  around
him.  The documentation in the Art 15 and AFR 39-10 discharge made him
responsible for things outside his control.  He is trying to join  the
Texas Air National Guard  and  unless  he  changes  his  discharge  to
honorable and changes his RE code, he is not eligible.  As  he  stated
in his DD Form 298, he has been employed in law  enforcement  with  no
charges of misconduct.  All he asks is a fair chance  to  correct  his
military record.  He is  currently  employed  as  a  force  protection
specialist in Bosnia.

In support of his request, he submits a personal letter.

Applicant’s complete application, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic  on
16 November 1989.  The applicant was  involuntarily  discharged  under
the provision of AFR 39-10 (misconduct - pattern of minor disciplinary
infractions) with service characterized as  general  (under  honorable
conditions) with an RE code of 2B on    4 February 1993 in  the  grade
of airman first class.  He served 3 years, 2 months  and  29  days  of
total active military service.

On 11 January 1993, the applicant was notified by his  commander  that
he was recommending applicant for  a  discharge  for  misconduct-minor
disciplinary infractions.  Reason for the action:  On  2  March  1992,
received Letter of  Counseling  for  failure  to  go  to  a  scheduled
appointment; 20 March 1992, received Letter of Counseling for  failure
to report for duty at the time prescribed; 30  April  1992,  counseled
for dereliction in the performance of his duties in that he failed  to
remain with the people he was escorting in a controlled area;  25  May
1992, received Letter of Counseling for failure to report to his  duty
section at the time prescribed; 19  March  1992,  received  Letter  of
Reprimand (LOR) for failure to report to his duty section at the  time
prescribed; 3 June 1992, received LOR and placed on the Control Roster
for being intoxicated and disorderly in that he communicated a  threat
to his spouse; 24 September 1992, memorandum for record  prepared  for
failure to report to his duty section at the time  prescribed;  On  15
December 1992, applicant’s commander notified  the  applicant  he  was
considering whether the applicant should be punished under Article 15,
UCMJ,  for  failure  to  report  to  his  duty  section  at  the  time
prescribed.  After consulting with military defense counsel, applicant
waived his  right  to  demand  trail  by  court-martial  and  accepted
nonjudical punishment.  On 21  December  1992,  applicant’s  commander
found he had committed the  offense  alleged  and  imposed  punishment
consisting of a reduction in rank to airman first class.

The  base  legal  office  reviewed  the  case  and  found  it  legally
sufficient to support  discharge  and  recommended  a  general  (under
honorable conductions) discharge without probation and rehabilitation.


On 28 November 1995, the Air  Force  Discharge  Review  Board  (AFDRB)
reviewed all the evidence of record and concluded  no  change  in  the
applicant’s discharge was warranted.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends  denial.   They
state the applicant should not prevail  here  absent  clear  error  or
injustice.  Prior to receiving  the  Article  15,  the  applicant  had
received one memo for the record, three Letters of Counseling, and one
Letter of Report, all for failure to go. The commander  clearly  acted
well within his authority in reducing  the  applicant.   There  is  no
reason or basis for the Board to substitute its judgment in this case.


The basis of the applicant’s request for  relief  is  insufficient  to
warrant setting aside the Article 15 actions, 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.

AFLSA/JAJM complete evaluation is at Exhibit C.


AFPC/DPPRS  recommended  denial  and  stated  that  based   upon   the
documentation on file in the master personnel records,  the  discharge
was consistent with the procedural and substantive requirements of the
discharge regulation.  The discharge was within the discretion of  the
discharge authority. Applicant did not submit new evidence or identify
any errors or injustices that occurred in  the  discharge  processing.
He provided no facts warranting an upgrade of his character of service
or reenlistment eligibility code.

AFPC/DPPRS complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 28 May 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 not timely filed;  however,  it  is  in  the
interest of justice to excuse that failure to timely file.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of an error or injustice. After a thorough review of the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded that his  Article  15  should  be  set  aside.   Applicant’s
contentions  are  duly  noted;  however,  we   do   not   find   these
uncorroborated  assertions,  in  and   by   themselves,   sufficiently
persuasive to override the rationale provided by the Air  Force.   The
evidence reflects that the commander initiated Article 15 action based
on information he determined to be reliable and that  the  nonjudicial
action was properly accomplished and applicant was afforded all rights
granted by statute and regulation.  We have not been convinced, by his
submission, that his commander abused his discretionary authority when
he imposed the nonjudicial punishment, and since we find no  abuse  of
that  authority,  we  find  no  reason  to  overturn  the  commander’s
decision.  Based on the circumstances surrounding his separation  from
the Air Force, we find no error or injustice in regard to the RE  code
issued. Therefore, in absence of evidence to the contrary, we find  no
basis to recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of a 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-2004-
00211 in Executive Session on 27 July 2004, under  the  provisions  of
AFI 36-2603:

                 Ms. Cathlynn B. Sparks, Panel Chair
                 Ms. Barbara R. Murray, Member
                 Ms. Renee M. Collier, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 4 Feb 04, w/atch.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, 22 Apr 04.
      Exhibit D. Letter, AFPC/DPPRS, 19 May 04.
      Exhibit E. Letter, SAF/MRBR, dated 28 May 04.




      CATHLYNN B. SPARKS
      Panel Chair