RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00131
            INDEX CODE:  110.02

      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED: NO


MANDATORY CASE COMPLETION DATE:  15 JUL 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be  upgraded  to
honorable.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He is entitled to an upgrade of his discharge.  Even though he  was
discharged on 22 Feb 78, in accordance with Civil  Action  No.  77-
0904, 27 Nov 79, it was deemed that  giving  a  less-than-honorable
discharge for urinalysis failure was illegal.

In support of  his  appeal,  applicant  submitted  a  copy  of  his
DD Form 214,  Report  of  Separation  from   Active   Duty,   dated
22 Feb 78.

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

___________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on  31  Mar  75  for  a
period of four  years  in  the  grade  of  airman  basic.   He  was
progressively promoted to the grade of airman first class  with  an
effective date and date of rank of 31 Mar 76.

On 23 Nov  77,  the  squadron  commander  initiated  administrative
discharge   action   against   the   applicant   for    misconduct;
specifically, his  civil  court  conviction  on  10  Oct  77.   The
specific reasons for the proposed action were:

      Possession of methyl amphetamine hydrochloride without  being
duly authorized.   Two  counts  of  possession  of  cannabis  resin
without being duly authorized.

      Other incidents supporting the recommended action were:  on 6
Jul 77, applicant received a Record of Counseling (ROC) for failure
to go.  He was convicted on 30  Jun  77  of  fraudulent  use  of  a
vehicle excise license, keeping a motor  vehicle  with  no  vehicle
excise license, using a motor vehicle with no insurance, and  using
a motor vehicle with no test certificate.  On 3 Oct 77, he received
an ROC for dereliction of duty.  On 4 Oct 77, he  received  an  ROC
for failure to go to a scheduled Social  Actions  appointment.   On
17 Oct 77, he received an  ROC  for  dereliction  of  duty  and  on
31 Oct 77, he received  a  Letter  of  Reprimand  for  operating  a
vehicle without a test certificate, road tax, and insurance.

On that same date, applicant acknowledged receipt of the  discharge
notification.  On 28 Nov 77, after consulting with counsel,  having
been advised of  his  rights,  applicant  submitted  a  conditional
waiver of his rights associated with  an  administrative  discharge
board hearing  contingent  on  his  receipt  of  no  less  than  an
honorable discharge.  On 16 Dec 77, the Staff Judge Advocate  (SJA)
found  the  case  legally  sufficient  to  support  discharge.   He
recommended the conditional waiver be disapproved based on the type
of offenses of which the  applicant  was  convicted  and  his  past
record of disciplinary problems.  On 23 Dec 77, the wing  commander
rejected the  conditional  waiver  and  advised  the  applicant  be
informed that he may submit  an  unconditional  waiver  or  he  may
submit his case to an administrative discharge board.

On 12 Jan 78, the applicant amended his original conditional waiver
and waived his rights associated with an  administrative  discharge
board hearing contingent on his receipt of no less than  a  general
discharge.   On  that  same  date,  applicant’s  military   counsel
informed the SJA that when he advised the applicant to  submit  the
first conditional waiver, he was unaware of  the  provisions  which
only  permit  the  submission  of  one  conditional   waiver.    On
27 Jan 78, the SJA recommended that since it appeared the applicant
was given incorrect legal advice, that the wing commander  approves
the waiver for a  general  discharge.   On  31  Jan  78,  the  wing
commander accepted the conditional waiver and recommended  approval
of a general discharge and stated that probation and rehabilitation
(P&R)  was  considered  and  deemed  inappropriate  based  on   the
frequency and nature of his involvements.  On 10 Feb 78, the  Major
Command SJA reviewed the case file and found it legally sufficient.
 He recommended approval of  the  general  discharge  without  P&R.
On 11 Feb  78,  the  discharge  authority  approved   the   general
discharge, without P&R and directed issuance of a DD Form 257AF.

On 22 Feb 78, the applicant was discharged under the provisions  of
AFR 39-12 with service characterized as under honorable conditions,
general.  He served 2 years, 10 months, and 22 days on active duty.

Pursuant  to  the  Board’s   request,   the   Federal   Bureau   of
Investigation, Clarksburg, West Virginia, provided an investigative
report which is attached at Exhibit C.

___________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS recommended applicant’s request be denied.  Based  on
documentation in the file, they found the discharge consistent with
the  procedural  and  substantive  requirements  of  the  discharge
regulation.  Additionally,  the  discharge  was  within  the  sound
discretion of the discharge authority.  They also  noted  applicant
did  not  submit  any  new  evidence  or  identify  any  errors  or
injustices that occurred in the discharge processing  and  provided
no other facts warranting a change to his character of service.

A complete copy of the evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the evaluation, applicant admits to being  young
and reckless.  In his address of the possession of  drugs,  he  was
young and influenced by his peers.  Although he did engage in  this
activity, in order to protect his peers, he took  total  blame  for
everything including discovered substances that was  not  his.   He
further explained the circumstances surrounding the fraudulent  use
of a vehicle excise license, test certificate  and  insurance.   He
further provided a brief summary of his accomplishments  since  his
discharge (Exhibit F).

On 18 April 2006, a copy of the FBI report  was  forwarded  to  the
applicant for comment.   At  that  time,  the  applicant  was  also
invited to provide additional evidence pertaining to his activities
since leaving the  service  (Exhibit  G).   As  of  this  date,  no
response has been received by this office.

___________________________________________________________________

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.   Applicant’s
contentions are duly noted.  However, we do not find his  arguments
sufficiently persuasive to override the rationale provided  by  the
Air Force.  The evidence  of  record  reflects  the  applicant  was
convicted by civil court for wrongful  use  of  methyl  amphetamine
hydrochloride and cannabis resin  resulting  in  a  general  (under
honorable conditions) discharge.  No evidence  has  been  presented
which would  lead  us  to  believe  that  the  applicant’s  service
characterization was improper.  In view of the seriousness  of  the
offenses committed during the period of service  under  review  and
the absence of evidence related to his post-service activities  and
accomplishments, we are  not  persuaded  that  an  upgrade  of  the
characterization of his discharge to fully honorable is  warranted.
Therefore, in the absence of persuasive evidence to  the  contrary,
we adopt the Air Force rationale as the basis  for  our  conclusion
that the applicant has not been the victim of an error or injustice
and conclude that no basis exists 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 AFBCMR Docket  Number
BC-2006-00131 in Executive  Session  on  24  May  2006,  under  the
provisions of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Mr. Reginald P. Howard, Member
      Mr. James A. Wolffe, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Jan 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, HQ AFPC/DPPRS, dated 26 Jan 06.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Feb 06.
    Exhibit F.  Letter, Applicant, dated 7 Feb 06.
    Exhibit G.  Letter, AFBCMR, dated 18 Apr 06.




                                   MICHAEL J. NOVEL
                                   Panel Chair