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AF | BCMR | CY2005 | BC-2002-00082-2
Original file (BC-2002-00082-2.doc) Auto-classification: Denied

ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-00082-2

            COUNSEL:  TX VETERANS COMMISSION

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

In the applicant’s request for reconsideration, he requests the  reason  for
his separation (Triable by Court-Martial) and his  reenlistment  eligibility
(RE)  code  of  “2B”  be  changed;  and,  his  under  other  than  honorable
conditions (UOTHC) discharge be upgraded to honorable.
_________________________________________________________________

STATEMENT OF FACTS:

The applicant was discharged with a UOTHC  discharge  on  11 September  2000
under the provisions of AFI 36-3208 (Triable by Court-Martial).   The  basis
for his discharge  was  due  to  a  pattern  of  misconduct.   Specifically,
charges were preferred against the applicant alleging he committed  adultery
on multiple occasions between 15 June 1999 and 30 June 2000 and that he  was
derelict in his duties by willfully failing to use a government vehicle  for
official purposes only.  His commander recommended the charges  be  referred
to trial by special court-martial.  On 21 August  2000,  the  applicant  and
his defense counsel requested a UOTHC discharge in lieu of trial  by  court-
martial.  The applicant’s request for discharge  in  lieu  of  court-martial
was approved by the discharge authority on 5 September 2000.   At  the  time
of his separation, the applicant was serving in the grade of staff  sergeant
(E-5) and was credited with a total of 13  years,  5 months  and  1  day  of
active duty service.  He received an RE code of  2B,  which  defined  means,
“Separated  with  a  general  or  under  other  than  honorable   conditions
discharge.”

On 3 April 2001, the applicant's requests for upgrade of  his  discharge  to
honorable, change of reason for discharge and RE code  were  denied  by  the
Air Force Discharge Review Board (AFDRB) (see Exhibit C).

A similar appeal was considered and denied by the Board on  27 August  2002.
For  an  accounting  of  the  facts  and   circumstances   surrounding   the
applicant’s separation, and, the rationale of the earlier  decision  by  the
Board, see the Record of Proceedings at Exhibit G.

The applicant submitted a request  for  reconsideration  through  the  Texas
Veterans Commission.  Counsel contends the applicant had a  spotless  record
prior to the incident that caused the discharge.  He believes the  applicant
received poor legal advice.  The applicant clearly made a  mistake  and  has
more than paid for this error in judgment.  The applicant’s request  for  an
upgrade and change of RE code should be approved so he can again  serve  his
country.  To support this assertion, counsel provided a  personal  statement
and statements from the applicant, his spouse and the pastor of his  church.
 Counsel’s complete submission, with attachments, is at Exhibit H.
________________________________________________________________

THE BOARD CONCLUDES THAT:

After again reviewing this application and the evidence provided in  support
of the appeal, we remain unpersuaded  that  the  applicant’s  discharge  was
erroneous or unjust.  In earlier findings, the Board determined  that  there
was  insufficient  evidence  to  warrant  corrective  action  regarding  the
applicant’s  requests.   We  have  reviewed  the  applicant’s  most   recent
submission and find it insufficient to warrant a  reversal  of  the  Board’s
previous determination in this  case.   After  reviewing  the  circumstances
surrounding the applicant’s discharge, it appears to be in  compliance  with
the governing AFI and we find no evidence to indicate  that  his  separation
from the Air Force was inappropriate.  With regard  to  the  assertion  that
the applicant received poor legal counsel, there is nothing in the  evidence
provided, other than the unsubstantiated allegations, which  would  lead  us
to believe that he received inadequate legal advice.  In  this  respect,  we
note the applicant’s request for  discharge  in  lieu  of  trial  by  court-
martial reveals he was aware of the adverse nature  of  an  UOTHC  discharge
and  the  possible  consequences  thereof,  to  include  being  deprived  of
veteran’s benefits.  We have considered the applicant’s overall  quality  of
service, the events which  precipitated  the  discharge,  and  the  evidence
related  to  his   post-service   activities   and   accomplishments.    The
applicant’s separation was based on the circumstances which existed  at  the
time and resulted from his own actions.  Therefore,  we  have  no  basis  on
which to favorably consider the requested relief.
_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 1 November 2005, under the provisions of AFI 36-2603:

                       Ms. Marilyn M. Thomas, Vice Chair
                       Ms. Olga M. Crerar, Member
                       Mr. James W. Russell III, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2002-00082-2.

      Exhibit G.  Record of Proceedings, dated 11 Oct 02,
                with Exhibits.
      Exhibit H.  DD Form 293, dated 23 Feb 05, with
                attachments.



                                   MARILYN M. THOMAS
                                   Vice Chair

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