RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2005-00821
                                             INDEX CODE:  100.00
      XXXXXXX                           COUNSEL:  NONE

      XXXXXXX                           HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  9 September 2006


________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Article 15 imposed on  16  November  1998,  be  removed  from  his
records and all rights and privileges be restored.

2.    The narrative reason for his discharge be changed.

3.    His Reenlistment Eligibility (RE) Code be changed.

4.    His discharge date be changed from 29 January 1999 to his  contractual
termination discharge date of 3 April 2000, with back pay.

______________________________________________________________

APPLICANT CONTENDS THAT:

Since the Article 15 was improper and based on unfounded charges, it  should
be  removed  from  his  records   and   he   should   receive   restitution.
Specifically, the incident does not constitute a violation  of  Article  111
since the specification for fault is not met.  His mere  involvement  in  an
incident is insufficient grounds for the charge of  reckless  driving.   The
incident does not meet the public review requirements of Article  134.   His
due process was violated when his  command  charged  him  with  a  different
infraction than what it gained jurisdiction for.  It was  improper  for  his
civil traffic infraction to be changed to criminal  charges  under  Articles
111 and 134.  Further, since the Article 15 was  the  sole  reason  for  his
discharge and the Air Force Discharge Review Board (AFDRB) has upgraded  his
discharge to honorable, the reason for his  discharge  and  RE  code  should
also be changed.

In support of the appeal, applicant submits  a  Tularosa  Police  Department
Police Report, dated 12 October 1998; the 16 November 1998 Article  15,  and
AFDRB Decisional Rationale (FD-2004-00306).

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air  Force  on  3
April 1996 for a period of four years.  On 18 December 1998,  the  commander
notified him of his  intent  to  initiate  administrative  discharge  action
against him for a pattern  of  misconduct,  discreditable  involvement  with
military authorities.  The commander indicated his reasons  for  the  action
were that on or about 17 July  1997,  the  applicant  was  derelict  in  the
performance of his duties in  that  he  willfully  failed  to  refrain  from
drinking alcoholic beverages while under the age of 21 years, failed  to  go
at the time prescribed to his appointed place  of  duty  without  authority,
and made an official statement with the intent to deceive that  he  had  not
been drinking at any time since  the  flight  social  event,  for  which  he
received nonjudicial punishment under Article 15  of  the  Uniform  Code  of
Military Justice (UCMJ) on 26 August 1998; on or about 10 October  1998,  he
operated a vehicle in a reckless manner by  wrongfully  driving  in  an  on-
coming lane of traffic and exposed himself in an indecent manner  in  public
view, for which he received another Article 15 on 16 November 1998.   On  29
January  1999,  he  was  discharged  with  an  under  honorable   conditions
(general)  discharge  under  the  provisions  of  AFI  36-3208  (Pattern  of
Misconduct).   He  received  an  RE  Code  of  “2B,”  which  defined   means
“involuntarily  separated  with  a  general  or   under-other-than-honorable
discharge."

On 1 February 2005, the AFDRB considered the applicant’s  requests  to  have
his general discharge upgraded, the reason for  his  discharge  be  changed,
and  his  RE  code  be  upgraded.   The  AFDRB  upgraded  his  discharge  to
honorable; however, they found insufficient basis on  which  to  change  the
reason and authority of his discharge, or to upgrade his  RE  code  (Exhibit
C).  However, as  a  result  of  his  characterization  of  discharge  being
upgraded to honorable his RE code of “2B” was  administratively  changed  to
“2C,”  which  defined  means  “involuntarily  separated  with  an  honorable
discharge.”

________________________________________________________________

AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application be denied and states,  in  part,  that
applicant’s  legal  contentions  are  faulty.   Contrary  to  his   original
statement that he was driving on the wrong side of the road because  it  was
his first time in town, he now contends he swerved across the  road  because
his girlfriend leaned over to  kiss  him;  however,  he  provides  no  sworn
affidavit from the girlfriend supporting this new story.  He  also  contends
that since he took his pants off inside his car, it was not in  public  view
and he did not intend for anyone other  than  his  girlfriend  to  see  him.
Military law does recognize the interior of a car as in public view for  the
purposes of Article 134 indecent exposure charge, and  even  though  he  did
not intend for anyone  else  to  see  him,  his  intentions  do  not  matter
legally, only that a third party could have seen  him.   Further,  there  is
nothing in the record to suggest the commander erred in finding him  legally
or factually responsible for these crimes.  The appellate  authority  agreed
with the commander and since there is nothing to suggest the  findings  were
fundamentally flawed, the commander’s ruling should be upheld.

The AFLSA/JAJM evaluation is at Exhibit D.

AFPC/DPPRS recommends the application be denied and states,  in  part,  that
the  discharge  was  consistent  with   the   procedural   and   substantive
requirements of the  discharge  regulation  and  was  within  the  discharge
authority.

The AFPC/DPPRS evaluation is at Exhibit E.

AFPC/DPPPWB states, in part, that it was within  the  commander’s  authority
to not recommend the applicant for promotion to airman  first  class  on  26
June 1998.  However, should the AFBCMR decide  to  remove  the  Article  15,
they could direct the applicant be promoted to the grade of  airman  with  a
date of rank (DOR) and  effective  date  of  26  August  1997,  which  would
entitle him to back pay at the airman grade for the period 16 November  1998
through 29 January 1999.

The AFPC/DPPPWB evaluation is at Exhibit F.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

With respect to  the  timeliness  of  his  application,  shortly  after  his
discharge he was hospitalized in a psychiatric  institution  for  over  5  ½
years, during which time he was unable  to  exercise  judgment  due  to  his
illness.  The sole source of information used to determine he committed  the
charges of reckless driving and indecent exposure was  the  Tularosa  police
report; however, the Tularosa officers make  no  claim,  nor  do  they  even
suggest that he  was  driving  recklessly  or  that  he  indecently  exposed
himself.  The appeal authority knew  the  charges  were  so  outrageous  and
changed the specific charges because the facts  were  unsupported  and  more
importantly, in order to  rubber  stamp  and  give  validity  to  these  far
fetched charges.

Applicant’s complete response is at Exhibit H.

________________________________________________________________

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.  In 1999, the applicant received a  general
discharge for a pattern  of  misconduct.   Specifically,  for  discreditable
involvement with military authorities, as evidenced by his  receipt  of  two
nonjudicial punishments under Article 15 of the UCMJ.   The  AFDRB  recently
upgraded his discharge to honorable; however, they found insufficient  basis
on which to change the reason and authority of his discharge, or to  upgrade
his RE code.  After thoroughly reviewing the evidence of record  and  noting
the applicant’s contentions, we find no basis to overturn  the  decision  of
the AFDRB regarding these issues.  Further, evidence has not been  presented
which would lead us to believe that the nonjudicial punishments he  received
were improper.  In cases of this nature, we are not inclined to disturb  the
judgments of commanding  officers  absent  a  strong  showing  of  abuse  of
discretionary authority.  We  have  no  such  showing  here.   The  evidence
indicates that, during  the  processing  of  the  Article  15  actions,  the
applicant was offered  every  right  to  which  he  was  entitled.   He  was
represented by counsel, waived his right to demand trial  by  court-martial,
and  submitted  oral  and  written  matters  for  review  by  the   imposing
commanders.  After considering the matters  raised  by  the  applicant,  the
commanders determined that he had committed "one or  more  of  the  offenses
alleged" and imposed the punishments.  The applicant has  not  provided  any
evidence showing that the imposing commanders  or  the  reviewing  authority
abused their discretionary  authority,  that  his  substantial  rights  were
violated during the processing of the Article 15 punishments,  or  that  the
punishments exceeded the maximum authorized by the UCMJ.

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 issue(s) 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-2005-00821
in Executive Session on 19 October 2005, under the  provisions  of  AFI  36-
2603:

                       Mr. Richard A. Peterson, Panel Chair
                       Mr. Wallace F. Beard, Jr., Member
                       Mrs. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Mar 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  AFDRB Hearing Record, dated 1 Feb 05, w/atchs.
    Exhibit D.  Letter, AFLSA/JAJM, dated 8 Aug 05.
    Exhibit E.  Letter, AFPC/DPPRS, dated 15 Aug 05.
    Exhibit F.  Letter, AFPC/DPPPWB, dated 29 Aug 05.
    Exhibit G.  Letter, SAF/MRBR, dated 9 Sep 05.
    Exhibit H.  Letter, Applicant, dated 25 Sep 05.




                                   RICHARD A. PETERSON
                                   Panel Chair