RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2004-00412
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXXX                  COUNSEL:  NONE

      XXXXXXXXXX                        HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to active duty with full back pay  and  no  lost  time  or,
alternatively, he be granted a 15-year retirement with full benefits, or  an
upgrade  of  his  general  discharge  to  honorable.   In  addition,  he  be
compensated  for  lost  time,  wages,  and  benefits  for  seven   days   of
incarceration from 27 November 2002 through 3 December 2002.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was denied due process of law during the 27 May  2003  Board  of  Inquiry
(BOI) that resulted in his separation from the  Air  Force.   His  commander
violated the Posse Comitatus Act,  18  United  States  Code  (USC),  Section
1385, by directing one of his subordinates to write a  statement  about  his
misconduct and then releasing the statement  to  civilian  authorities.   In
addition, the BOI members were not allowed  sufficient  time  to  adequately
review the documentary evidence before the  board  and  he  was  denied  the
opportunity to present  live  testimony  of  a  key  witness,  who  was  his
civilian counsel in State criminal court proceedings, to the board.  He  was
a victim of a prank, which caused him to be incarcerated for seven days  (27
November - 3 December 2002).  His  accusers  failed  to  show  in  court  or
pursue any charges, which resulted in all charges being dismissed.

In support of his application, the applicant provides a personal  statement;
copies of civilian incident reports, warrants of arrest,  and  petition  for
protective order; court transcripts; duty status changes;  DFAS  computation
of time lost; USC Code Title 18, Section 1385 (Posse Comitatus  Act);  sworn
affidavits and testimonies; response to the  BOI;  discharge  documentation;
and  AFI  51-201  excerpt.   The  applicant’s  complete   submission,   with
attachments, is at Exhibit A (two separate applications).

_________________________________________________________________

STATEMENT OF FACTS:

The applicant  is  a  former  rated  officer  who  was  appointed  a  second
lieutenant, Reserve of the Air Force, on 14 May  1988  and  was  voluntarily
ordered to extended active duty on 11  November  1988.   He  was  integrated
into the Regular Air Force on 1 March 1995 and  was  progressively  promoted
to the grade of major (0-4) effective and with a date of rank of 1  December
1999.

The following is a resume of his OPR  ratings  commencing  with  the  report
closing 1 January 1991:

      PERIOD ENDING                     OVERALL EVALUATION

       1 Jan 91 (1Lt)                   Meets Standards (MS)
      12 Jul 91                                MS
       3 Apr 92                                MS
       3 Mar 93 (Capt)                    MS
       3 Mar 94                                MS
       3 Mar 95                                MS
       1 May 96                                MS
      14 Feb 97                                MS
      14 Feb 98                                MS
      14 Feb 99                                MS
      14 Feb 00 (Maj)                     MS
      14 Feb 01                                MS
      14 Feb 02                                MS
      14 Feb 03                                Does Not Meet Standards
                                               (Referral OPR)

On 27 November  2002,  civilian  authorities  arrested  the  applicant  with
warrants accusing him of vandalism, stalking  and  obstruction  of  justice.
He was released from civilian  confinement  after  his  bond  hearing  on  3
December 2002.  On 30 January  2003,  charges  against  the  applicant  were
dismissed in court after his accusers failed to appear.  On 18  March  2003,
his commander initiated discharge action  against  the  applicant  based  on
allegations  of  an   unprofessional   relationship,   maltreatment,   three
violations  of  no-contact  orders,  damage  to   personal   property,   and
communicating a threat.  On 25 March 2003, his wing commander  notified  the
applicant that he was  initiating  action  against  him  that  required  the
applicant to show cause for retention on  active  duty  under  AFI  36-3206,
chapter 3, paragraph 3.6.4 (serious or recurring  misconduct  punishable  by
military  or  civilian  authorities).   On  4 April  2003,   the   applicant
acknowledged receipt after consulting military counsel.  On 6 May 2003,  his
counsel submitted a statement in response in the applicant’s behalf.   On  5
May 2003, his wing commander notified the applicant  that  a  BOI  would  be
convened to receive evidence and make findings and  recommendations  whether
the applicant should be retained in the Air Force.  On 27 May 2003, the  BOI
was convened.  After considering the evidence, the BOI found  the  applicant
did not commit one of the  no-contact  order  violations  nor  had  he  been
involved in an unprofessional relationship.  However, the BOI found  he  had
committed the  other  offenses  and  recommended  the  applicant  receive  a
general discharge from the Air  Force.   On  7 July  2003,  the  applicant’s
counsel responded to the discharge approval authority claiming the  BOI  was
legally insufficient,  that  its  findings  and  recommendations  should  be
invalidated, and the discharge action be terminated.  On 8  July  2003,  his
wing commander concurred with the BOI’s recommendation  that  the  applicant
be separated from the Air Force with a  general  discharge,  under  AFI  36-
3206, Chapter 3, paragraph 3.6.4, which authorizes discharge for serious  or
recurring misconduct punishable by military or civilian authorities.

On 12 August 2003, the Chief, Administrative Law Division, found  the  BOI’s
findings and recommendations legally sufficient.  On 30 September 2003,  the
Secretary of the Air  Force  approved  the  applicant’s  separation  with  a
general (under honorable  conditions  discharge)  and  determined  that  the
applicant should be required to reimburse the  United  States  for  the  pro
rata share of the Aviator Bonus he received pursuant  to  Title  37,  United
States  Code,  Section  301b.   On  14  October  2003,  the  applicant   was
involuntarily  discharged  with  a  general  (under  honorable   conditions)
discharge and a separation code of GKQ (misconduct).  He  served  14  years,
11 months and 4 days on active duty.  He had seven days  time  lost  due  to
civilian confinement.

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AIR FORCE EVALUATION:

AFPC/JA recommends the applicant’s requests be denied.  JA states  that  the
applicant’s counsel raised  the  same  contentions  in  their  7  July  2003
Response to the Board of Inquiry.  AF/JAA addressed each of these issues  in
its 12 August 2003 legal review of the BOI, rejecting  each  allegation  and
concluding that the record was legally sufficient  to  support  the  board’s
recommendation.  It is JA’s opinion that the applicant was provided  a  full
and fair hearing by an impartial board, consistent with  the  provisions  of
Air Force Instruction 51-602.

Concerning the issue of the applicant’s lost time due to  incarceration,  JA
states that according to court transcripts, civilian  authorities  dismissed
charges relating to  these  arrests  (charges  of  stalking  and  destroying
property) in a preliminary hearing conducted on 30  January  2003.   DoDFMR,
Vol 7A, IC 23-03, Table 1-13, Rule 2 provides that when a member  is  absent
from duty in confinement by civil authorities and charges are dismissed  and
it is clear that arrest and detention were not due to  member’s  misconduct,
then his/her absence may be excused as  unavoidable.   In  such  cases,  the
member is entitled to otherwise proper credits of pay and  allowances.   AFI
36-2911, para 4.7.5.2.2 provides  that  “Examples  of  excused  absence  not
charged to leave include…when civilian  law  enforcement  authorities  hold,
try and acquit a member.”  JA states that the applicant was  not  tried  and
acquitted by civilian authorities;  rather  the  charges  against  him  were
dismissed in a preliminary hearing.  The applicant’s confinement  cannot  be
excused as unavoidable unless it is clear  that  his  arrest  and  detention
were not due to his misconduct.  It is JA’s opinion that the  applicant  has
failed to clearly establish that his arrest and detention were  not  due  to
his own misconduct.  Additionally,  the  applicant  has  failed  to  present
relevant evidence of any error  or  injustice  warranting  relief.   The  JA
evaluation is at Exhibit C.

AFPC/DPPRRP recommends the applicant’s request for a 15-year  retirement  be
denied.  DPPRRP states that the applicant did not have the  required  amount
of active duty required for a 15-year retirement under the  Temporary  Early
Retirement Act (TERA).  In addition, the  TERA  program  was  not  open  for
application at the time of his separation  from  active  duty.   The  DPPRRP
evaluation, with attachments, is at Exhibit D.

AFPC/DPPRS recommends denial.  DPPRS states the  applicant’s  discharge  was
consistent  with  the  procedural  and  substantive  requirements   of   the
discharge  regulation  and  was  within  the  discretion  of  the  discharge
authority.  The DPPRS evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  2
April 2004 for review and response within 30 days.  As of this  date,  this
office has received no response.

_________________________________________________________________

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 probable error or injustice.  The applicant  did  not  provide
persuasive evidence showing he was denied due process during the  BOI  that
resulted in his separation from the Air Force.  He also failed  to  provide
evidence that would lead us to believe that information  in  the  discharge
case was erroneous, his substantial rights were violated, or his commanders
abused their discretionary authority.  In the absence of such evidence,  it
is our opinion that the characterization of discharge which was  issued  at
the  time  of  the   applicant’s   separation   accurately   reflects   the
circumstances of his separation and we do not find the characterization  of
discharge to be in error or unjust.  As far as the applicant’s request  for
a 15-year retirement, we note the applicant did not  have  enough  time  to
qualify for a 15-year retirement under TERA and, more importantly, that the
program  ended  six  years  prior  to  his  separation  from  active  duty.
Therefore, we find no basis in which to favorably consider his request  for
a 15-year retirement.  In reference to his  request  to  restore  his  lost
time, the applicant has failed to provide evidence that his lost  time  was
not due to his own misconduct.  In the absence of such evidence, we are not
inclined to grant his  request  for  restoration  of  his  lost  time.   In
summation, we conclude  that  no  basis  exists  upon  which  to  recommend
favorable action  on  his  requests  to  upgrade  his  characterization  of
discharge, grant him a 15-year retirement, or restore his lost time.

_________________________________________________________________

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 this application in  Executive
Session on 8 June 2004, under the provisions of AFI 36-2603:

            Mr. Roscoe Hinton Jr., Panel Chair
            Mr. Garry G. Sauner, Member
            Mr. Grover L. Dunn, Member

The following documentary evidence was considered in connection with  AFBCMR
Docket Number BC-2004-00412:

      Exhibit A.  DD Forms 149, dated 2 Feb & 5 Mar 04, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/JA, dated 31 Mar 04.
      Exhibit D.  Letter, AFPC/DPPRRP, dated 9 Mar 04.
      Exhibit E.  Letter, AFPC/DPPRS, dated 24 Feb 04.
      Exhibit F.  Letter, SAF/MRBR, dated 2 Apr 04.




                                                   ROSCOE HINTON JR.
                                                   Panel Chair