RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00130
            INDEX CODE:  110.02
      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  15 JULY 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  general  (under  honorable  conditions)  discharge  be  changed  to  an
honorable or medical discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His original discharge was for medical reasons due to  asthma.  He  contends
that his discharge was  changed  because  he  refused  to  take  an  anthrax
vaccine.

In support of his application, the applicant provided  a  copy  of  AF  Form
356, Findings and Recommended Disposition of USAF Physical Evaluation  Board
(PEB), and an email from AFPC/DPPDS.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 23 September 1998 and  served
as a security forces  journeyman.  His  duty  performance  was  reported  as
excellent until he refused the anthrax vaccination while deployed to  Kuwait
in  March   2000   (subsequent   medical   evaluation   found   no   medical
contraindication for administration of the anthrax  vaccine).  For  this  he
received an Article 15 (second Article 15) on 15 June  2000.  Meanwhile,  on
12 April 2000 he received his first Article 15 for  failure  to  go  to  his
appointed place of duty and for leaving his appointed place of duty  without
authorization. His commander administratively discharged  the  applicant  on
31 July 2000, but granted Probation and Rehabilitation (P&R). The  terms  of
P&R included, “If Amn__ violates any punitive article of  the  Uniform  Code
of Military Justice, or exhibit  behavior  that  fails  to  meet  Air  Force
Standards,  the  approved  discharge  will  be  executed.”   The   applicant
acknowledged the terms of his Probation and Rehabilitation in writing.
The applicant was diagnosed with asthma during the summer of  2000  and  was
eventually referred for Medical  Evaluation  Board  (MEB)  on      19  March
2001.   The  applicant  submitted  a  memorandum  to  the  MEB,   requesting
retention. Following initiation of the disability  evaluation  process,  the
applicant was punished for a series of  disciplinary  infractions  that  led
his commander to revoke P&R and execute the  previously  approved  discharge
action.

On 8 May 2001 the  Informal  Physical  Evaluation  Board  (IPEB)  found  the
applicant unfit for continued  military  service  due  to  asthma  rated  10
percent and recommended disability discharge with severance pay.

On 21 June 2001, the applicant was discharged under the  provisions  of  AFI
36-3208, Misconduct-Minor Disciplinary Infractions, with  a  general  (under
honorable conditions) discharge.

On 17 August 2001, the applicant’s case was considered by the  Secretary  of
the Air Force Personnel Council as a dual action  case  and  determined  the
applicant should be  discharged  by  execution  of  the  approved  discharge
action for misconduct.

_________________________________________________________________

AIR FORCE EVALUATION:

The BCMR Medical Consultant is of the opinion that no change in the  records
is warranted. The applicant was administratively discharged  for  a  pattern
of misconduct consisting of minor disciplinary infractions. At the time  the
applicant was entering the disability  evaluation  system,  he  committed  a
series of disciplinary infractions that violated the terms of  his  P&R  and
his  commander  revoked  that  provision  and  initiated  execution  of  the
previously approved  administrative  discharge.  Air  Force  regulations  do
provide for review by the Air Force  Personnel  Council  of  cases  when  an
airman is subject to  involuntary  discharge  for  misconduct  and  is  also
eligible  for  disability  separation.  The  Air  Force  Personnel   Council
determines under which basis for discharge the  airman  will  be  separated,
misconduct or disability as well as the characterization of service.  Unless
the medical disability is the cause of the misconduct or is of a  compelling
and devastating  nature,  the  Personnel  Council  consistently  decides  to
separate based on the misconduct.  There  is  no  evidence  the  applicant’s
medical condition caused his misconduct or was of a compelling  nature  that
would make discharge under provisions of  misconduct  inappropriate.  Action
and disposition in this case are proper and equitable reflecting  compliance
with Air Force directives that implement the law.

BCMR Medical Consultant's complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded  to  the  applicant  on  19
December 2005 for review and comment within 30 days.  As of this date,  this
office has received no response.

_________________________________________________________________

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 an error or injustice warranting an upgrade in  his  discharge.
The records reflect that  the  commander  initiated  administrative  actions
based on information he determined to be reliable  and  that  administrative
actions were properly accomplished.  The applicant was afforded  all  rights
granted by statute and regulation.  We are not  persuaded  by  the  evidence
presented that the commander abused  his  discretionary  authority  when  he
initiated the  discharge  action,  and  since  we  find  no  abuse  of  that
authority, we find no reason to  overturn  the  commander’s  decision.  With
respect to the applicant’s request for a medical discharge, the  Board  took
note that an Informal Physical Evaluation Board found  the  applicant  unfit
for continued military service  due  to  asthma  rated  at  10  percent  and
recommended disability discharge with severance pay.  The  applicant’s  case
was considered by the SAFPC  as  a  dual  action  case  and  determined  the
applicant should be  discharged  by  execution  of  the  approved  discharge
action  for  misconduct.  Therefore,  we  agree   with   the   opinion   and
recommendation of the BCMR Medical Consultant and  adopt  his  rationale  as
the basis for our conclusion that the applicant has not been the  victim  of
an error or  injustice.  In  the  absence  of  persuasive  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-2005-00130
in Executive Session on 8 February 2006, under the  provisions  of  AFI  36-
2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. Dorothy P. Loeb, Member
      Ms. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Jan 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, BCMR Medical Consultant, dated 15 Dec 05.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Dec 05.




                                   THOMAS S. MARKIEWICZ
                                   Chair