RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00929
            INDEX NUMBER:  110.03
      XXXXXXX    COUNSEL:  Guy J. Ferrante

      XXXXXXX    HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge from the Air Force for misconduct be voided  and  he  be
reinstated to active duty.

In the alternative, applicant requests that  the  characterization  of
his discharge be changed from under honorable conditions (general)  to
honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Applicant’s counsel lays out applicant’s appeal in an eight-page brief
of counsel with 14 attachments.  He opines that applicant’s misconduct
did not justify his discharge and the life-long stigma he now suffers.

Counsel references a provision  in  AFI  36-3208  that  requires  that
individuals be given an opportunity  to  overcome  their  deficiencies
before being discharged for a pattern  of  misconduct.   According  to
counsel, implicit in this provision is that an individual  should  not
be discharged for minor misconduct that is no longer  a  problem.   He
states that the applicant had overcome his deficiencies  by  the  time
discharge proceedings were initiated in February 2001.

Applicant’s Area Defense Counsel (ADC) represented hundreds of clients
in various military disciplinary proceedings at  the  base  where  the
applicant was assigned and was afforded the unique perspective to  say
that the applicant’s commander was an extremely strict  commander  who
often gave her troops paperwork for minor infractions.  As compared to
other commanders on base, she had a  zero  tolerance  policy  for  any
mistakes or misconduct, no matter how small.  The ADC did not remember
another commander during her tenure  at  the  base  that  consistently
recommended that airmen be discharged for such minor infractions.

Counsel provides discussion on how minor  the  offenses  committed  by
applicant were.  He opines that  the  commander’s  decision  that  the
applicant was not Air Force material was a mistake and that after  all
the  time,  effort,  and  expense  that  had  been  expended  in   the
applicant’s training, it was erroneous and unjust to make  a  mountain
out of several little molehills that were either isolated  (speeding),
nonrecurring (oversleeping), or of questionable validity (untidiness).

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 14 Jul  99.   On
16  Feb  01,  his  squadron  commander  notified  him  that   he   was
recommending his discharge from the Air Force based on  a  pattern  of
misconduct (conduct prejudicial to good order  and  discipline).   The
reasons for the commander’s actions were:

        a.  Failing to keep his room in inspection order from  15  Dec
00 to 21 Dec 00.  Applicant received his second Article  15  for  this
offense.

        b.  Late for work on 12 Oct 00.  His  suspended  reduction  to
airman from an earlier Article 15 was vacated.

        c.  Late for work on 10  Jul  00  and  7  Aug  00.   Applicant
received an Article 15 consisting of a suspended reduction to  airman,
15 days extra duty, and 15 days restriction to Base.

        d.  Reporting to duty on 10 Jul 00 without  having  shaved  or
shined his boots.

        e.  Late for work on 23 Jun 00.  Applicant received  a  letter
of reprimand (LOR).

        f.  Ticketed for speeding on 15 Apr 00.  Applicant received  a
letter of counseling.

        g.  Failure to go on 4 Apr 00.  Applicant received an LOR.

        h.  Failure to go on 20 Mar 00.  Applicant received a  written
counseling.

        i.  Failure to go  on  15  Mar  00.   Applicant  was  verbally
counseled.

The applicant acknowledged receipt of the discharge notification on 16
Feb 01.  On 22 Feb 01, he responded that he had consulted counsel  and
he submitted a written response in his behalf.  On    1  Mar  01,  the
applicant’s squadron commander recommended to the Wing Commander  that
the applicant be discharged for the reasons indicated above, be  given
a general (under honorable conditions) discharge,  and  be  offered  a
period of probation and rehabilitation (P&R).  On 7 Mar 01,  the  Wing
Commander directed that the applicant be separated from the Air  Force
based on a Pattern of Misconduct (Conduct Prejudicial  to  Good  Order
and Discipline).  The Wing Commander also directed that the  applicant
be separated with a General (Under  Honorable  Conditions)  discharge,
without probation and rehabilitation.  The applicant was discharged on
12 Mar 01 with a General (Under Honorable Conditions) discharge.

_________________________________________________________________
AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial of the applicant’s appeal.  Applicant has
indicated technical irregularity in his case  based  on  AFI  36-3208,
paragraph 5.2, which states “Airmen  should  have  an  opportunity  to
overcome their deficiencies before discharge action starts...”   Based
on the actions taken against the applicant from Mar 00 to Dec  00,  he
was provided the opportunity to overcome his deficiencies.   Based  on
the documentation in the applicant’s  master  personnel  records,  the
discharge  was  consistent  with  the   procedural   and   substantive
requirements of the discharge regulation.

The complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counsel responded to the Air  Force  evaluation.   Counsel
states that the evaluation only addresses one of the  many  issues  in
the case and does so superficially.  Counsel opines  that  AFPC/DPPR’s
assertion that the “applicant was provided an opportunity to  overcome
his deficiencies” does not fully address the requirement  in  AFI  36-
3208 that discharge proceedings not be initiated until  an  airman  is
given the opportunity to  overcome  his  deficiencies.   According  to
counsel, implicit in this requirement is the notion  that  airmen  are
only to be discharged for deficiencies that  they  fail  to  overcome.
Counsel references their original Brief of Counsel, which stated  that
the applicant had  overcome  all  of  his  deficiencies  by  the  time
discharge proceedings were initiated in Feb 01.  Counsel  states  that
the  applicant’s  discharge  was  manifestly  inconsistent  with   the
procedural and substantive requirements of AFI 36-3208.

Counsel’s complete response is at Exhibit E.

_________________________________________________________________

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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and  adopt  their  rationale  as  the
primary basis for our conclusion that the applicant has not  been  the
victim of an error or injustice.  Applicant’s counsel appears to argue
that applicant had overcome his deficiencies based on  his  not  being
cited for repeat infractions of the same type.  However, the applicant
was discharged based on a pattern of misconduct, which meant that  his
misconduct was looked at in totality and not as  individual  offenses.
While the applicant may not have committed the same  type  of  offense
each  time,  we  believe  he  was  placed  on  notice  that  continued
misconduct of any type would lead  to  progressively  harsher  action,
which in his case was  his  eventual  discharge.   Therefore,  in  the
absence of evidence to the contrary, we find no  compelling  basis  to
recommend granting the relief sought in this application.

4.  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.
Therefore, the request for a hearing is not favorably considered.

_______________________________________________________________

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-2004-
00929 in Executive Session on 24 June 2004, under  the  provisions  of
AFI 36-2603:

      Mr. Laurence M. Groner, Panel Chair
      Ms. Kathleen F. Graham, Member
      Mr. John B. Hennessey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPRS, dated 26 Mar 04.
    Exhibit D.  Letter, SAF/MRBR, dated 2 Apr 04.
    Exhibit E.  Letter, Counsel, dated 30 Apr 04.




                                   LAURENCE M. GRONER
                                   Panel Chair