RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00329
            INDEX NUMBER:  131.00
      XXXXXXX    COUNSEL:  None

      XXXXXXX    HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  26 Jul 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be restored to the grade of senior airman (SrA).

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APPLICANT CONTENDS THAT:

The Air Force Discharge Review  Board  (AFDRB)  determined  that  his
discharge was inequitable and upgraded the character of his discharge
to honorable.  Therefore, he is requesting that he be restored to the
previous grade of SrA he held before the inequity occurred.

In  support  of  his  appeal,  applicant  provides  copies   of   the
documentation related to the AFDRB action and a copy of  his  amended
DD Form 214.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant served on active duty from 19 Aug 98 to 3 Aug  01.   On
29 Jul 01, the applicant’s squadron commander  notified  him  he  was
recommending his discharge from  the  Air  Force  for  a  pattern  of
misconduct.  The reasons for the commander’s action were:

        a.  On 23 Jul 01, he received a letter of reprimand (LOR) for
assaulting his wife.

        b.  He received punishment under Article 15 on 11 Jul 01  for
driving on base with a suspended driver’s license and for leaving his
appointed place of duty without permission.  Punishment consisted  of
reduction to the grade of airman basic (AB) with a new date  of  rank
of 11 Jul 01.

        c.  He received an LOR on 7 Jun 01 for failing to turn in his
airline tickets after his TDY was cancelled enroute  to  a  permanent
change of station.

The applicant acknowledged receipt of the notification on 29  Jul  01
and indicated he had consulted counsel and waived his right to submit
statements on his behalf.   On  1  Aug  01,  the  squadron  commander
recommended to the wing commander the applicant  be  discharged  from
the Air Force with an under honorable conditions (general) discharge.
  He  also  recommended  the  applicant  not  receive  probation  and
rehabilitation.  On 2 Aug 01, the wing staff judge advocate found the
action against the applicant legally sufficient and  recommended  the
applicant be discharged  without  probation  and  rehabilitation  and
given an under honorable conditions (general) discharge.  In a letter
dated 4  Aug  01,  the  wing  commander  directed  the  applicant  be
discharged with an under honorable  conditions  (general)  discharge.
Although the letter directing the applicant’s discharge  is  dated  4
Aug 01, the applicant’s DD Form 214 reflects he was discharged  on  3
Aug 01.

On 23 Aug 02 the Air Force Discharge Review Board (AFDRB)  denied  an
appeal from the applicant to upgrade his discharge to honorable.   On
20 Apr 04, the AFDRB again considered the applicant’s appeal to  have
his discharge  upgraded  to  honorable,  to  change  the  reason  and
authority  for  his  discharge,  and  to  change   his   reenlistment
eligibility (RE) code.  The AFDRB approved upgrade of the applicant’s
discharge to honorable and changed his RE code to “3K.”

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s  request  to  restore
his grade to SrA.  Considering the action of the AFDRB, they  believe
no further relief is warranted.  The AFDRB concluded the  applicant’s
discharge was appropriate, but the characterization of service should
be changed to  honorable  and  his  RE  code  changed  to  allow  the
applicant’s entry  into  the  Reserves.   The  applicant’s  commander
concluded the applicant had committed the two offenses he was charged
with.  This case illustrates the  difficulty  of  addressing  factual
issues long after the fact.  The Article 15 paperwork  indicates  the
applicant consulted a lawyer and chose not to present any matters  to
the commander.  He also did not appeal the  punishment  he  received.
Since the applicant chose to waive his right to present  evidence  to
his commander, applicant’s claim now that the evidence  is  different
should not be heard.  Additionally, the AFDRB record makes  it  clear
the applicant chose to drive on base  in  willful  disregard  of  the
order not to do so.  If the applicant had come forward with proof  he
had a valid license, it is likely the commander would  have  modified
the allegation against  him.   It  is  a  reasonable  assumption  the
applicant chose not to contest the allegations because he knew he had
committed an offense with regard to driving on base and saw no  point
in contesting the issue.

They disagree the applicant’s reduction  in  grade  was  inequitable.
They believe the punishment given the  applicant  was  and  still  is
appropriate.

The complete evaluation is at Exhibit C.

AFPC/DPPPWB defers to the recommendation of AFLSA/JAJM.

The complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to  the  applicant
on 1 Apr 05 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 not timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

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 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.

_________________________________________________________________

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-2005-
00329 in Executive Session on 10 May 05, under the provisions of  AFI
36-2603:

      Ms. Cathlynn B. Sparks, Panel Chair
      Mr. Patrick C. Daugherty, Member
      Ms. Marcia Jean Bachman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 20 Jan 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 28 Feb 05.
    Exhibit D.  Memorandum, AFPC/DPPPWB, dated 10 Mar 05.
    Exhibit E.  Letter, SAF/MRBR, dated 1 Apr 05.




                                   CATHLYNN B. SPARKS
                                   Panel Chair