RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-02375
            INDEX NUMBER:  110.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The narrative reason for his discharge from the Air Force  be  changed
from “Misconduct” to “Convenience of the Government.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Discharge Review Board (DRB) in considering the same request above
ignored pertinent facts  presented  by  him  and  his  representatives
(Congressman and father).

The DRB admitted the Air Force counsel who represented him at the time
of his discharge and  personnel  in  the  Education  Office  committed
numerous errors.  The DRB ignored the impact these errors had  on  his
case.  They also  ignored  that  he  erroneously  paid  an  additional
$600.00 for additional Montgomery GI Bill (MGIB) benefits,  which  has
not been returned.

The DRB incorrectly applied burden  of  proof  on  the  charges  filed
against him rather than addressing and  basing  their  ruling  on  the
issues of propriety and equity supported by his incompetent Air  Force
counsel and the advice he received from  personnel  in  the  Education
Office.

His request should be concluded in his favor based on  the  statements
made at the DRB hearing by their legal counsel confirming he was given
incorrect advice  by  his  AF  counsel  and  the  reiteration  by  his
representative (Congressman)  that  based  on  Air  Force  rules,  the
incorrect advice he was given should conclude his case in his favor.

In support of his appeal, applicant provides a prepared statement  and
a copy of the DRB decisional rationale.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 18 Nov 98.  On 7
May 01, his squadron commander notified him he  was  recommending  his
discharge from the Air Force for misconduct, specifically drug  abuse.
The reason for the commander’s action was  the  applicant’s  voluntary
admission to a mental health provider he had used cocaine in  Jan  01.
As a result of his disclosure, the  applicant  received  a  letter  of
reprimand (LOR).  In the letter of  notification,  the  applicant  was
advised of his right to  counsel  and  to  submit  statements  in  his
behalf.  The applicant acknowledged receipt on  7  May  01,  consulted
counsel and waived his right to submit statements.  On 15 May 01,  the
squadron commander recommended to the wing commander the applicant  be
discharged for the reason stated above.  The wing Staff Judge Advocate
reviewed  the  applicant’s  discharge  file  and  found   it   legally
sufficient to  support  his  discharge.   They  recommended  the  wing
commander recommend  to  the  discharge  authority  the  applicant  be
discharged  with  an  honorable  service   characterization,   without
probation and  rehabilitation.   The  wing  commander  accepted  their
recommendation  and  recommended  to  the  discharge   authority   the
applicant be discharged from  the  Air  Force.   On  22  May  01,  the
discharge  authority  directed  the  applicant’s  discharge  with   an
honorable  discharge  without  probation  and   rehabilitation.    The
applicant was discharged on  24 May 01 with two years, six months, and
five days of active service.

On 18 Oct 02, the applicant applied to  the  DRB  for  change  of  the
reason for  his  discharge  from  misconduct  to  convenience  of  the
government.   The  applicant  declined  the  offer   of   a   personal
appearance.  The DRB denied the applicant’s  request,  concluding  the
discharge  was  consistent  with  the   procedural   and   substantive
requirements of the discharge regulation and was within the discretion
of the discharge authority.  On 27 Aug 03, the applicant  requested  a
second review by  the  DRB,  with  a  personal  appearance.   The  DRB
considered the applicant’s case on  27  Jan  04.   The  applicant  was
represented  by  his  father  and  his  Congressman.   The  DRB  again
concluded the applicant’s discharge was proper and denied his request.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommends the applicant’s request be denied.  Based on the
documentation in the  master  personnel  records,  the  discharge  was
consistent with the procedural and  substantive  requirements  of  the
discharge regulation.  The Air Force DRB previously reviewed  all  the
evidence of record and also reached  this  conclusion.   They  further
concluded there exists no legal or equitable basis  for  changing  the
narrative reason for his separation from “misconduct” to  “convenience
of the government.”

The complete evaluation is at Exhibit C.

AFPC/JA recommends the applicant’s request be denied.  The sole  issue
for the Board in this case  is  whether  the  applicant  was  properly
discharged  from  the  Air  Force  for  misconduct.   The  applicant’s
interest in this issue is obvious:  He  qualifies  for  MGIB  benefits
only if he has completed 30 months of active service,  was  discharged
for  “convenience  of  the  government,”  and  received  an  honorable
characterization.   No  evidence   exists   that   substantiates   the
applicant’s claims he was told his discharge would be for “convenience
of  the  government.”   From  the  inception  of  this  administrative
discharge action, the documentation clearly  specifies  he  was  being
separated for “misconduct.”  In particular, the applicant acknowledged
receipt  of  his  commander’s  notification  of  intent  to  recommend
discharge for “misconduct, specifically  drug  abuse”  on  7  May  01.
After consulting with his counsel,  the  applicant  responded  to  his
commander’s notification stating:  “I have been notified that you  are
recommending  me  for  discharge  for  misconduct,  specifically  drug
abuse….”  He also elected not to contest the discharge and waived  his
right to submit statements with that response.

The only appropriate basis for this discharge is  misconduct.   Airmen
“found to have abused drugs will be discharged unless the member meets
all seven” of the so-called retention criteria.  Further, the  “burden
of  proving  that  retention  is   warranted   under   these   limited
circumstances rests with  the  member.”   As  previously  stated,  the
applicant did not contest the drug abuse  allegation  and  offered  no
evidence his retention in the Air Force was appropriate.

Because a precise basis  for  discharge  exists  for  the  applicant’s
misconduct, discharge for “convenience of  the  government”  would  be
unauthorized.   Discharge  for  “convenience  of  the  government”  is
appropriate when discharge would serve the best interests of  the  Air
Force and  discharge  for  cause  is  not  warranted.   Based  on  the
applicant’s  admission  of  using  cocaine,  his  commander   properly
initiated discharge action for misconduct.

The complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Air Force evaluations, the applicant states the
only reason he finds himself in the situation he is  in,  after  self-
identifying, is because as a lowly airman, he  trusted,  listened  and
followed the legal advice provided by two Air Force professionals, his
counsel and a representative from the Base Education Office.  He would
have never signed his DD Form 214 if he had  known  that  he  had  not
received correct, competent, and factual advice.  He urges  the  Board
to inspect and review  all  of  the  documentation  he  has  provided,
especially the cassette tape made of his DRB hearing in  deciding  his
case.
The applicant’s complete submission 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 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 opinions and  recommendations  of  the  Air
Force offices of primary responsibility and adopt their  rationale  as
the primary basis for our conclusion the applicant has  not  been  the
victim of an error or injustice.  We note  the  applicant’s  assertion
that the only reason he finds himself in the situation  he  is  in  is
because he “trusted, listened and followed the  legal  counseling  and
advice provided by two Air Force professionals.”  However, we fail  to
see the connection between the advice the applicant received  and  his
eventual discharge from the Air Force.  Even if the applicant was  led
to expect a different result by his counsel and the education officer,
their views were speculative at best since the decision  on  his  case
was in the hands of his commander and the discharge authority.  As has
been pointed out in the advisory prepared by  AFPC/JA,  the  discharge
notification to the applicant clearly put him on notice of the  reason
he was being discharged.  The applicant’s commander was not  bound  to
consider the applicant’s enrollment and  payment  of  funds  into  the
Montgomery GI Bill in deciding the appropriate discharge action.   The
applicant has not  provided  sufficient  evidence  to  show  that  his
discharge was not in accordance with pertinent Air Force instructions.
 Further, even if the applicant had not signed his  DD  Form  214,  it
would not have changed the results  of  his  discharge.   Rather,  the
procedure in these circumstances is simply to annotate the DD Form 214
with the statement “member refused to sign.”  Additionally, we believe
the decisional rationale prepared by  the  Air  Force  DRB  adequately
addresses the applicant’s assertions regarding the  issues  of  equity
and propriety.  Finally, we note  that  AFPC/DPPAT  has  notified  the
applicant his additional $600.00 contribution  to  the  Montgomery  GI
Bill is being refunded.  We believe this provides adequate relief  for
any possible miscounseling by the education  officer.   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-2004-
02375 in Executive Session on 17 November 2004, under  the  provisions
of AFI 36-2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Mr. Wallace F. Beard, Jr., Member
      Mr. Albert C. Ellett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Jul 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPRS, dated 5 Aug 04.
    Exhibit D.  Memorandum, AFPC/JA, dated 13 Sep 04.
    Exhibit E.  Letter, SAF/MRBR, dated 17 Sep 04.
    Exhibit F.  Letter, Applicant, dated 15 Oct 04.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair