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


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01344

      XXXXXXX    COUNSEL:  None

            HEARING DESIRED: Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge from the Air Force be changed to retirement.

__________________________________________________________________

RESUME OF CASE:

On 17 Aug 04, the AFBCMR considered  and  denied  the  requests  from  the
applicant as stated above (Exhibit G).  In a new DD Form 149 (Exhibit  H),
the applicant contends the court-martial that resulted  in  his  discharge
has been overturned on appeal.  The applicant has attached to the DD  Form
149 a memorandum, dated    18 Oct 05, which states that the  findings  and
sentence of his court-martial were set aside and the  convening  authority
had 120 days to conduct a rehearing.

On 23 Mar 06, the applicant’s request for reconsideration  was  mailed  to
the Board.  During their review the Board asked questions based  on  their
review of the additional  Air  Force  evaluation  prepared  by  AFLSA/JAJM
(Exhibit I).  Subsequently, an evaluation  was  prepared  by  the  SAF/MRB
Legal Advisor (Exhibit M).  On 11 Apr 06, the applicant submitted a letter
requesting his case be temporarily withdrawn.  On 27 Jul 06, the applicant
requested his case be reopened and also  submitted  a  statement  for  the
Board’s consideration  (Exhibit  O).   In  his  statement,  the  applicant
explains the circumstances behind his decision to leave the Air Force  and
not extend to meet the administrative discharge board.

__________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFLSA/JAJM provided an evaluation of  the
new evidence submitted by the applicant.  They  recommend  denial  of  the
applicant’s requests.

AFLSA/JAJM notes the applicant did not receive a discharge from his  court
martial as he indicates.  They further note that the applicant’s grade  of
master sergeant and back pay will be restored as a consequence of the  set
aside of his conviction and that correction of his separation documents to
reflect his grade as master sergeant is appropriate.

At the time of his expiration of term of service (ETS), the applicant  was
facing an administrative  discharge.   The  basis  for  an  administrative
discharge board was  the  applicant’s  conviction  in  Oct  01  and  three
disciplinary actions of failure to go in 1998  and  1999.   The  applicant
chose to separate on his  ETS  rather  than  extend  his  reenlistment  to
complete the discharge board proceedings.  The  applicant  separated  from
the Air Force with an honorable discharge and is not subject to retrial.

The Court of Appeals of the Armed  Forces  (CAAF)  decision  authorized  a
rehearing.  Therefore, the decision was not tantamount  to  a  finding  of
innocence or acquittal.  The set aside of the criminal conviction and  the
decision to not retry the applicant does not alter the underlying conduct.
 The applicant’s conduct, drug abuse,  is  a  basis  for  discharge.   The
applicant already had the windfall benefit by separating before  appellate
review was complete, thereby precluding a second trial.

The complete evaluation is at Exhibit I.

__________________________________________________________________

ADDITIONAL AIR FORCE INFORMATION:

Pursuant to the Board’s request, the SAF/MRB Legal  Advisor  reviewed  the
evaluation prepared by AFLSA/JAJM.   The  MRB  Legal  Advisor  notes  that
although the applicant exercised his right to separate at the end  of  his
enlistment rather than continue on active duty, the government could  have
placed the applicant on appellate leave.  If it had placed  the  applicant
on appellate leave, the government would have had the authority  to  retry
the applicant if his conviction was overturned on appellate  review.   The
Legal Advisor opines the government probably failed to place the applicant
on appellate leave through oversight.  The applicant could  not  agree  to
remain on active duty without extending the government’s  jurisdiction  to
retry  him  in  the  event  of  a  successful  appeal.   Accordingly,  the
applicant’s  separation  was  a  means  to  avoid  retrial,  which  became
available to him,  probably,  through  government  oversight  rather  than
intention.

Although it us correct to say the  discharge  was  initiated  for  certain
conduct, not a conviction, it should also be noted that at the time of the
discharge, it was alleged drug use (among other offenses).  The  applicant
contested the fact he wrongfully used drugs.  The  government  cited  drug
use in the discharge proceedings,  but  there  is  no  legally  recognized
factual finding the applicant wrongfully  used  drugs.   Moreover,  it  is
possible, if not likely, that the evidence excluded from the court-martial
would have prevented the government from establishing drug use even by the
preponderant evidence standard used in  administrative  proceedings.   The
applicant would have  had  a  chance  to  have  the  Secretarial  designee
consider a  second  request  for  retirement  in  lieu  of  administrative
discharge after the  administrative  discharge  board.   Even  though  the
request submitted before the board was denied, the  second  request  might
have been granted especially given the  perennial  concern  that  officers
cannot be denied retirement pay through administrative  proceedings  under
similar circumstances.

The SAF/MRB Legal Advisor indicates he believes the evaluation prepared by
AFLSA/JAJM is misleading in stating that had the applicant agreed to  stay
on active duty, the administrative discharge board might have  decided  in
his favor and he would be allowed to retire.  Given the multiple drug use,
the board almost certainly would have had  to  recommend  discharge  since
multiple drug  use  would  have  rendered  the  applicant  ineligible  for
retention.  Moreover, the board would not have had the authority to  allow
retirement.  They could have made  a  non-binding  recommendation  on  the
record as to whether they believe the applicant should be able to retire.

The bottom line is the applicant knowingly chose a course of  action  that
rendered him ineligible for  retirement.   Thus,  the  panel  can  clearly
conclude there is no error or injustice in his situation, but his analysis
should be considered in reaching that determination.

The complete evaluation is at Exhibit M.

__________________________________________________________________

A copy of the SAF/MRB Legal Advisor’s evaluation  was  forwarded  to  the
applicant on 11 Aug 06 for review and comment within 15 days.  To date, a
response has not been received.

__________________________________________________________________

THE BOARD CONCLUDES THAT:

Insufficient relevant evidence has not been presented to demonstrate  the
existence of an error or injustice.  After again reviewing  the  complete
evidence of record along  with  the  applicant’s  current  submission,  a
majority of the Board agrees with the recommendation made  by  AFLSA/JAJM
and adopts its rationale for their determination the  applicant  has  not
been the victim of an error or injustice.  Therefore, in the  absence  of
evidence to the contrary, we find  no  basis  to  grant  the  relief  the
applicant is seeking.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the Board finds insufficient evidence of error or injustice
and recommends the application be denied.

__________________________________________________________________

The following members of the Board considered Docket Number BC-2004-01344
in Executive Session on 20 October 2006, under the provisions of AFI  36-
2603:

      Ms. Rita S. Looney, Panel Chair
      Ms. Renee M. Collier, Member
      Ms. Barbara R. Murray, Member

By a majority vote, the Board voted to  deny  applicant’s  request.   Ms.
Looney voted to grant the applicant’s requests and submitted  a  minority
report at Exhibit P.  The following additional documentary  evidence  was
considered:

    Exhibit G.  Record of Proceeding, w/atchs, dated 17 Aug 04.
    Exhibit H.  DD Form 149, undated, w/atchs.
    Exhibit I.  Memorandum, AFLSA/JAJM, dated 13 Feb 06.
    Exhibit J.  Letter, AFBCMR, dated 22 Feb 06.
    Exhibit K.  Fax Cover Sheet, dated 11 Apr 06, w/atch.
    Exhibit L.  Letter, AFBCMR, dated 13 Apr 06.
    Exhibit M.  Memorandum, SAF/MRB Legal Advisor, dated 3 Apr 06.
    Exhibit N.  Letter, AFBCMR, dated 11 Aug 06.
    Exhibit O.  Letter, Applicant, undated, w/atch.
    Exhibit P.  Minority Report




                                   RITA S. LOONEY
                                   Panel Chair
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                 FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXX, BC-2004-01344


           The  Board  majority  has  accepted  the  recommendation  of
AFLSA/JAJM to deny the applicant’s request for retirement  and  adopted
their rationale as the basis for their determination the applicant  has
not been the victim of an error or injustice.  I  disagree  with  their
determination.  AFLSA/JAJM states  that  the  rehearing  of  the  court
martial charges the applicant was convicted of, authorized by the Court
of Appeals for the Armed Forces, “was not tantamount to  a  finding  of
innocence or an acquittal.”  Further, they  state  that  the  fact  the
criminal conviction has been set aside and will not be retried does not
alter the underlying conduct and that  the  applicant’s  conduct,  drug
abuse, was a basis  for  discharge.   Finally,  AFLSA/JAJM  opines  the
applicant  has  received  a  windfall  benefit  by  separating   before
appellate review was complete, thereby precluding a second trial.

      I believe the analysis by the SAF/MRB Legal Advisor brings  forth
critical  facts  that  should  not  be  discounted  in  arriving  at  a
determination in this case.  Key among those is his  pointing  out  the
Air Force had the option to place the applicant on appellate leave and,
thereby, would have retained criminal jurisdiction  with  authority  to
retry the applicant under the circumstances present in this  case.   It
seems that AFLSA/JAJM wants the Board to believe the Air Force  had  no
recourse regarding the applicant’s  decision  to  separate  before  the
appellate review of  his  court  martial  was  complete  and  that  the
applicant did so to avoid the possibility of a  second  trial,  thereby
depriving the Air Force of the  opportunity  to  establish  his  guilt.
However, the SAF/MRB Legal Advisor points out the  Air  Force  probably
failed to place the applicant on appellate leave  through  “oversight.”
I believe this is a  critical  issue  in  deciding  this  case  because
clearly the overriding factor in denying the applicant  retirement  was
the seriousness of his conviction for  drug  use.   In  fact,  this  is
alluded to in the decision memorandum prepared by SAFPC.  Although both
SAFPC  and  AFLSA/JAJM  note  the  applicant’s  involvement  in   other
instances of misconduct, I do not  believe  that  those  actions  alone
would have been sufficient to deny the applicant  retirement.   Indeed,
many of the prior disciplinary actions had occurred while the applicant
was  serving  in  a  lower  grade,  had   been   dealt   with   through
administrative or nonjudicial actions and had  not  brought  about  the
initiation of discharge action prior to the drug use conviction.

      I do not  believe  AFLSA/JAJM’s  argument  that  the  applicant’s
conduct, irrespective of the court martial conviction, provides a basis
for discharge is credible.  AFLSA/JAJM  states  that  the  decision  to
authorize a rehearing “was not tantamount to a finding of innocence  or
an acquittal.”  I believe it is just as  accurate  to  state  that  the
authorized rehearing was not tantamount to a  guilty  finding.   It  is
significant to note that  according  to  the  MRB  Legal  Advisor,  the
applicant contested the fact that he wrongfully  used  drugs  and  that
although the Air Force cited drug use  in  the  discharge  proceedings,
there is no legally recognized factual finding the applicant wrongfully
used drugs.  Further, according to the SAF/MRB  Legal  Advisor,  it  is
possible (if not likely) that the evidence  excluded  from  the  court-
martial would have prevented the Air Force from establishing  drug  use
even by the preponderant evidence standard
used in administrative proceedings.  In light of these facts and in the
interest of equity and justice, I believe the only reasonable  decision
in this case is to grant the applicant retirement.



                       RITA S. LOONEY
                       Panel Chair

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                  FOR CORRECTION OF MILITARY RECORDS
(AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXX, BC-2004-01344

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that the applicant
had not provided sufficient evidence of error or injustice and
recommended the case be denied.  However, I find the minority member’s
recommendation to grant the requested relief to be more compelling and
believe she has provided credible rationale to support her position.
Accordingly, I adopt her rationale as the basis for my determination the
applicant has been the victim of an error or injustice and to grant his
request.

      Please advise the applicant accordingly.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards Agency
AFBCMR BC-2004-01344-2


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXX, XXXXXXX, be corrected to show that:

            a.  He was not discharged on 6 June 2003, but on that
date was continued on active duty, applied for retirement for
length of service, and his request was approved by competent
authority.

            b.  On 30 June 2003, he was relieved from active duty
and retired on 1 July 2003, under the provisions of Title 10
U.S.C., Section 8914, in the grade of master sergeant.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency