RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00305
            INDEX CODE:  110.02

            COUNSEL:  NONE

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge be upgraded from  general,  under  honorable  conditions
(UHC) to honorable and his  reenlistment  eligibility  be  changed  to
“Eligible.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge was in violation of the military regulations that govern
such actions and that his state and federal constitutional rights were
not properly afforded him.  He admits to errors in judgment but he has
always honorably served his country.  His commander  was  notified  in
August 2001 that the applicant had been charged with alleged  indecent
exposure.  Civil authorities were addressing the issue and he  claimed
he was not guilty of misconduct or indecent exposure.   His  commander
waited  until  27 November  2001  to  inform  him  of  his  intent  to
involuntarily discharge him.  Because of limited finances, he  had  to
choose between continuing the civilian trial and get kicked out of the
Air National Guard (ANG) without being  given  the  chance  to  defend
himself or try to get the civilian case dismissed and  fight  the  ANG
separation.  He decided  to  try  and  get  the  charges  against  him
dismissed in civil court and to hire a lawyer with military experience
to try and fight his discharge.

After being threatened by a Staff Judge Advocate that he would receive
an under other than honorable conditions (UOTHC) discharge  unless  he
signed away his right to a hearing, he decided to waive his right to a
hearing and accept an under honorable conditions (UHC) discharge as he
didn’t feel he could trust his leadership.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and copies of several pertinent documents  relating  to  his
civil case, his separation/discharge documentation, several letters of
recommendation, a report of investigation (ROI)  from  the  Air  Force
Office of  Special  Investigation  (AFOSI),  pertinent  case  studies,
personnel documents including  several  enlisted  performance  reports
(EPR’s), college transcripts and  his  application  to  the  Discharge
Review Board (DRB).

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant, a former member  of  the  Florida  Air  National  Guard
(FLANG), joined the FLANG on 1  October  1993  and  was  progressively
promoted to the grade of Technical Sergeant (TSgt) with a date of rank
(DOR) of 1 April 1999.  On 24 February 1999 he  was  selected  for  an
Active Guard/Reserve (AGR) position.  From 6 August to 24 August 2001,
the AFOSI, at the  request  of  applicant’s  commander,  conducted  an
investigation of the applicant on allegations he violated Article 134,
Subsection  88  of  the  Uniform  Code  of  Military  Justice  (UCMJ),
misconduct due to  indecent  exposure.   On  9  August  2001,  he  was
interviewed by the AFOSI as a matter of course and exercised his right
to remain silent and not answer  questions.   On  23  August  2001,  a
victim of applicant’s alleged misconduct filed civil  charges  against
the applicant and the state brought the  same  charge  on  30  October
2001.   On  27 November  2001,  his  commander  notified  him  he  was
recommending his AGR tour be curtailed and that  he  be  involuntarily
discharged  from  the   FLANG   for   misconduct,   with   a   service
characterization of general, under  other  than  honorable  conditions
(UOTHC).   On  30 November  2001,  he  acknowledged  receipt  of   his
commander’s  recommendation  and  asked  that  his  AGR  tour  not  be
curtailed until after his administrative separation board hearing.  On
14 February 2002, the  Florida  Adjutant  General  (AG)  approved  the
involuntary separation action.   On  3  March  2002,  on  advice  from
military counsel, he voluntarily waived his right to an administrative
discharge board contingent on his receipt of no less than  a  general,
under honorable conditions (UHC) discharge.  On 7 March 2002, his  AGR
order was curtailed from  6  February  1999  to  5  February  2003  by
amendment to 6 February 1999 to 24 April 2002.  Also on 7 March  2002,
the civil charges of indecent  exposure  brought  by  the  state  were
judged nolle pros (We shall no longer prosecute) on the condition  the
applicant undergo a sexual offender course.  On 24 April 2002, his AGR
tour expired and  he  was  discharged  from  the  FLANG  with  an  UHC
discharge.  He was discharged in the grade of TSgt after having served
16 years, 6 months, and  23  days  of  combined  Regular  and  Reserve
service.

On  3  September  2003,  he  initiated  an  Inspector   General   (IG)
investigation wherein he claimed he was separated from the AGR program
and discharged from the FLANG due to reprisal and  violations  of  due
process.   The  IG  complaint  analysis  discovered  a  local  command
directed investigation (CDI) had taken place between  March  and  June
2004.  The  CDI  identified  13 specific  allegations  in  three  main
categories: improper maintenance procedures by members  of  his  unit,
abuse of authority by his commander, and  violations  of  due  process
surrounding his separation from the AGR program and discharge from the
FLANG.   The  CDI  found  two  of  the  allegations   were   partially
substantiated  and  the  remaining   eleven   allegations   were   not
substantiated.  The applicant alleged he was separated and  discharged
because he raised serious maintenance concerns in a unit-wide meeting.
 The IG found the preponderance of the evidence showed  his  commander
made a clear, concise and appropriate decision to recommend separation
and discharge of the applicant due  to  misconduct.   The  commander’s
recommendation was founded on serious deviation from the expected code
of  conduct  for  military  personnel  in   particular   that   of   a
noncommissioned officer.  The seriousness of the derogatory  act  that
led up to  his  commander’s  recommendation  made  the  recommendation
appropriate.   The  evidence  shows  the  applicant’s  allegation   of
reprisal with respect to his addressing maintenance practices  at  his
unit  are  not  substantiated.   The   IG   recommended   no   further
investigation into allegations  of  reprisal.   On  27  October  2004,
letter of the IG’s findings notified the applicant.

Examiner’s Note: The applicant had applied  to  the  Discharge  Review
Board (DRB) about a month prior to applying  to  the  AFBCMR.   On  11
January 2005, we sent him a letter notifying him that, as he  had  not
exhausted all remedies available  to  him  to  find  relief  prior  to
applying to the AFBCMR, we  were  administratively  holding  his  case
until such time as the DRB made a decision on his  request.   The  DRB
denied his case on 8 June 2005.  As the AFBCMR did not hear  from  the
applicant again, his case was administratively closed on 8  May  2006.
His case was reopened on 19 July 2006 pending receipt of a letter from
the applicant requesting the AFBCMR  consider  his  application.   His
letter was received on 7 September 2006.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/DPPI recommends denial.  The process by which  the  applicant  was
separated and discharged was clearly  in  accordance  with  Air  Force
Instruction 36-3209, Separation  and  Retirement  Procedures  for  Air
National Guard and Air Force Reserve  Members.   Characterizations  of
service that apply  to  specific  discharge  scenarios  state  that  a
characterization of “Honorable” is justified if “…  (The)  quality  of
the member’s service generally has met USAF  standards  or  acceptable
conduct  and  performance  of  duty.”   “Under  Honorable   Conditions
(General)” is appropriate when  “Significant  aspects  of  conduct  or
performance of duty outweigh positive aspects of the member’s military
record.”  After significant review of this case and in light of AFI 36-
3209,   DPPI   states   the   applicant   received   the   appropriate
characterization of service under the  circumstances  leading  to  his
discharge.  DPPI can find no evidence of error or  injustice  in  this
case and therefore can find no basis upon which to favorably  consider
his application.

DPPI’s complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant questions DPPI’s contention they “thoroughly  reviewed”  the
evidence he presented.  He states he was not found guilty of any crime
and the charges in the civil case were dropped.   The  applicant  also
provides numerous challenges to statements made by the FLANG Assistant
Adjutant General for Air  in  response  to  a  query  from  his  state
senator.

Applicant asks should the AFBCMR find the DRB  has  closed  his  case,
that we should reopen his case.  He provides numerous  attachments  to
his letter that were originally intended as an appeal to the DRB.   He
wants the Board to know he has graduated from college with nominations
and acceptance into Honors Societies and Magna Cum Laude as  a  Double
Major in  Inter  Disciplinary  Social  Sciences  and  Psychology  from
Florida State University.  Though he does not agree with the  practice
of taking into account post service accomplishments  when  considering
requests for upgrades to discharge, he notes  he  does  not  make  the
rules and has included his post service accomplishments.  He plans  to
continue his education by attending  law  school  where  he  plans  to
ensure the mis-treatment that occurred during his discharge  does  not
happen to others.

Applicant’s complete response, with attachments, is at Exhibit E.

_________________________________________________________________

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
including his  contention  his  discharge  was  in  violation  of  his
military rights and that his  State  and  constitutional  rights  were
violated; however, we agree with the opinion and recommendation of the
Air National Guard office of  primary  responsibility  and  adopt  its
rationale as the basis for our conclusion that the applicant  has  not
been the victim of an error or injustice.  After being notified he was
being considered for  involuntary  discharge  with  an  UOTHC  service
characterization, he voluntarily decided to  waive  an  Administrative
Discharge Board (ADB) to ensure  his  service  characterization  would
instead be General, Under Honorable Conditions (UHC).   His  claim  he
was actually forced out of the ANG and his fulltime active  duty  tour
because he spoke up  about  deficiencies  in  maintenance  and  flying
operations at his unit  were  not  substantiated.   Additionally,  his
claims of reprisal and violations of due process were also found to be
without merit by an Inspector General Investigation.  The IG  found  a
preponderance of the evidence provided including an earlier  Commander
Directed Investigation (CDI) indicate  the  commander  made  a  clear,
concise,  and  appropriate  decision  to  recommend   separation   and
discharge of the applicant due to misconduct.  Further, we noted  that
while his civil case was processed as Nolle Pros, meaning “We shall no
longer prosecute” the Nolle Pros agreement  was  contingent  upon  the
applicant attending a  sexual  offender  course.   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  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 AFBCMR Docket Number BC-
2004-00305  in  Executive  Session  on  25  October  2006,  under  the
provisions of AFI 36-2603:

      Ms. Kathleen F. Graham, Panel Chair
      Mr. Gary G. Sauner, Member
      Mr. Gregory A. Parker, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Feb 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/DPPI, dated 7 Oct 04, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 15 Oct 04.
    Exhibit E.  Letter, APPLICANT, dated 19 Oct 04.
    Exhibit F.  Letter, APPLICANT, dated 30 Aug 06 w/atchs.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair