RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01344
            INDEX NUMBER:  136.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

His discharge from the Air Force be changed to retirement.

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APPLICANT CONTENDS THAT:

He was advised he was not eligible for retirement.

In support of his appeal, applicant provides copies  of  his  DD  Form
214, which show that he had 24 years, 11 months, and 23 days of active
service.

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

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STATEMENT OF FACTS:

The applicant entered active duty on 29 Jun 78.  He was promoted up to
the grade of master sergeant (MSgt) (E-7).  On 5 Aug 02, his  squadron
commander notified him he was recommending his discharge from the  Air
Force for drug  abuse  and  conduct  prejudicial  to  good  order  and
discipline.  The reasons for the commander’s action were:

        a.  The applicant was convicted by general court-martial on 12
Oct 01 for violation of Article 112a, Uniform Code of Military Justice
(UCMJ), for wrongfully using marijuana on divers occasions between  on
or about 5 Oct 99 and on or about 5 Oct 00.  The applicant was reduced
in grade from MSgt to airman (AMN).

        b.  The applicant was punished under Article 15 on 28  Jan  99
for failure to go at the time prescribed to  his  appointed  place  of
duty.

        c.  He received a letter of reprimand (LOR) on 28 Apr  98  for
failure to go.

        d.  He was formally counseled on 17 Mar 98 for failure  to  go
on two occasions in Mar 98.

The applicant acknowledged receipt of the discharge notification on  8
Aug 02.  On 13 Aug 02, applicant’s military counsel requested a  delay
of the administrative discharge hearing.  The applicant also submitted
a request for voluntary retirement in lieu  of  discharge  processing.
The discharge action against the applicant was suspended on 11 Oct  02
in order to process the applicant’s retirement request.  On 9 May  03,
the Secretary of the Air Force Personnel Council  (SAFPC)  disapproved
the applicant’s request for retirement.  On 28 May 03,  the  applicant
was advised in writing that his current enlistment expired on    6 Jun
03 and that he could not be involuntarily retained on active  duty  to
continue involuntary discharge processing.  He was advised that he had
two options:

        a.  He could have voluntarily extended his enlistment for  the
time needed to complete the case.

        b.  He could separate on his expiration  of  term  of  service
(ETS), 6 Jun 03, but would not be eligible to reenlist.  The applicant
was further advised that by separating in this manner, he would not be
eligible for separation pay or military retirement.

The applicant did not request an extension of his enlistment  and  was
discharged on 6 Jun 03.

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AIR FORCE EVALUATION:

AFPC/DPPRRP recommends denial of the applicant’s request.  In order to
apply for retirement, an enlisted member must be on  active  duty  and
must not be precluded from  submitting  an  application.   Because  an
administrative discharge action was pending, the applicant  chose  not
to extend his enlistment and was separated from the Air Force  on  his
date of separation, fully aware that if he did extend  and  the  board
decided in his favor, he could have requested retirement.

The complete evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 4
Jun 04 for review and comment within 30 days.  To date, a response has
not been received.

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ADDITIONAL AIR FORCE INFORMATION:

SAFPC previously considered and recommended denial of the  applicant’s
request  to  retire.   They  note  that  the  court-martial  that  the
applicant had recently undergone was not his first experience with use
of the criminal trial forum to resolve  allegations  of  illegal  drug
use.  The applicant had been tried twice before and was acquitted both
times.  In addition, the applicant had other instances  of  misconduct
that they gave consideration.  He was punished  under  Article  15  in
1985 for driving  a  car  while  drunk.   He  was  given  a  suspended
reduction to the grade  of  staff  sergeant  (SSgt)  and  a  suspended
forfeiture of pay.  Again in 1992, he was punished  under  Article  15
for  driving  a  car  while  intoxicated.   He  received  a  suspended
reduction to SSgt and a forfeiture of pay for two months.

After  reviewing  the  facts   and   circumstances   surrounding   the
applicant’s  most  recent  misconduct,  the  various  views   of   the
commanders in his chain  of  command,  and  similar  cases  previously
considered, SAFPC recommended that the applicant’s request be denied.

The complete SAFPC file is attached at Exhibit E.

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APPLICANT'S REVIEW OF ADDITIONAL INFORMATION:

A copy of the SAFPC file was forwarded to the applicant on  9  Jul  04
for review and comment within 30 days.  To date, a  response  has  not
been received.

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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 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.

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.

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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-
01344 in Executive Session on 17 August 2004, under the provisions of
AFI 36-2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Ms. Renee M. Collier, Member
      Mrs. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Apr 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 26 May 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Jun 04.
    Exhibit E.  Memorandum, SAF/MRB, dated 8 May 03, w/atchs.
    Exhibit F.  Letter, AFBCMR, dated 9 Jul 04.




                                   ROSCOE HINTON, JR.
                                   Panel Chair