RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01026
            INDEX CODE:  100.03
      XXXXXXX    COUNSEL: VETERAN SERVICE OFFICE

            HEARING DESIRED: NO

MANDATORY CASE COMPLETION DATE:  6 OCTOBER 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge be upgraded to honorable;  he  be  returned  to  reserve
status in  order  to  complete  his  military  career  and  pursue  an
honorable retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was arrested on 22 March 2001 for a crime he did  not  commit.  The
charges against him were dismissed free and clear. This action was not
tantamount to a finding of guilty.  His  personal  statement  and  the
documents he is submitting supports the fact that he was not connected
to a crime.  He has no criminal  record  or  warrants,  and  he  never
appeared before  the  presiding  judge,  Judge  Prado,  regarding  any
pretrial agreement. He continues to serve as a  member  of  the  Bexar
County Sheriff's Office.

In support of his application, applicant has provided  a  letter  from
his veterans service office, a personal  letter,  letters  of  support
from Bexar sheriff's office, a copy of an affidavit, a letter from his
Area Defense Counsel,  letter  from  his  supervisor,  a  letter  from
ARPC/DPPS, Special Order CL-059, DD  Form  293,  Application  for  the
Review of Discharge from the Armed Forces of the United States, letter
from SAF/MRBR.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Air Force Reserve on 23 November 1998 in the
grade of staff sergeant with a date of rank of 1 July 1994.

On 21 March 2002, an indictment was filed against the applicant in the
United States District Court,  Western  District  Texas,  San  Antonio
Division, alleging one count of theft of $2,000, the property  of  the
United States, in violation of Title 18 U.S.C., Section 641. Following
the  applicant's  successful  completion  of  his  pretrial  diversion
agreement, the United States Attorney moved to dismiss the indictment.


On 4 September 2002, an action  tantamount  to  a  finding  of  guilty
occurred when a district judge for Western District of Texas dismissed
the applicant's indictment under Title 18 U.S.C., Section 641 for  the
theft of $2,000, the property of the United States, upon completion of
pretrial diversion.

On 7 November 2002, applicant's commander notified  him  that  he  was
recommending discharge from the Air Force Reserve. The  authority  for
this  action  is  Air  Force  Instruction  36-3209,   Separation   and
Retirement Procedures for Air National Guard  and  Air  Force  Reserve
Members, para 3.21.4.1,  "Civilian  Conviction."  The  ARPC  Commander
recommended that he receive an under other than  honorable  conditions
(UOTHC) discharge.

On 14 February 2003,  the  applicant,  through  counsel,  submitted  a
conditional waiver of his right to an administrative  discharge  board
in exchange for "receipt of no less than a  general  (under  honorable
conditions) discharge.

On  27  February  2003,  the  applicant's  conditional  waiver  of  an
administrative discharge board was approved and he was discharged with
a general (under honorable conditions) discharge in the grade of staff
sergeant.

_________________________________________________________________

AIR FORCE EVALUATION:

ARPC/JA  recommended  denial.  Since  March  2001,  JA   tracked   the
applicant's case as it processed through the civilian  criminal  court
system. JA requested the necessary  court  documents  to  support  its
administrative action. A closely related UCMJ  offense,  Article  121,
Larceny, would authorize a punitive discharge, and certainly, a $2,000
theft,  especially  by  someone  in  law  enforcement,  would  warrant
discharge. Integrity is the Air Force's #1 core value, so  unlike  the
civilians, who appear to have discarded  the  applicant's  prosecution
for bigger netted fish, action is considered warranted. However, there
must be an action tantamount to a finding of guilty--such as dismissal
following successful completion of pretrial diversion.  In  2003,  the
Discharge Authority thoroughly  reviewed  defense  counsel's  argument
that the applicant did  not  consent  to  pretrial  diversion  program
participation, but Col McC concluded there was sufficient evidence  to
proceed with discharge. The  14  February  2003  memo  from  the  U.S.
Pretrial Services Officer, clearly  states,  that  although  a  signed
pretrial diversion program agreement was never filed with  the  court,
applicant  verbally  agreed  to  enter  the  diversion  program,   was
subjected to travel restrictions, and applicant honored  an  agreement
term by paying $1600 restitution. Contrary  to  the  opinions  of  the
applicant and Mr. McK, there is no evidence the prosecutor lied to the
federal court--which is a very serious  accusation,  the  Government's
Motion to Dismiss. If the federal  judge  was  dissatisfied  with  the
sufficiency of the record before him, he would not have determined the
motion "is with merit" and granted it.  Sufficient  evidence  supports
the Discharge Authority's conclusion applicant consented  to  pretrial
diversion in exchange for  a  dismissal.  It  is  important  to  note,
applicant could have argued  the  consent  issue  before  a  board  of
officers, but with the advice of counsel, he chose to waive his  right
to a hearing. Applicant's discharge from the USAFR  IAW  AFI  36-3209,
para 3.21.4., Civilian Conviction, with  a  General  (Under  Honorable
Conditions) service characterization was appropriate.

ARPC/JA's complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant's counsel reviewed the Air Force evaluation and  states  the
applicant contends he did not  agree  or  sign  a  pretrial  diversion
agreement nor did he appear before a  judge  to  accept  any  pretrial
diversion agreement, and, therefore, he did not proclaim any guilt for
the charges against  him.  Furthermore,  the  applicant  believes  the
comments made by the assistant district attorney,  as  to  his  belief
about the  applicant's  guilt,  are  only  an  opinion  without  legal
standing or adjudication,  and  should  be  disregarded.  Finally  the
overall scope of the circumstances surrounding the applicant's  arrest
and the  aftermath,  which  involved  eleven  other  defendants,  drew
extensive  publicity,  media   attention,   legal   maneuvering,   and
subsequent  charges  against  witnesses,   should   be   reviewed   as
extraordinary events prejudicial to serving justice for the applicant.

Applicant's counsel 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 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 relief.  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; we do  not  find
the applicant’s contentions and the documentation presented in support
of his  appeal  sufficiently  persuasive  to  override  the  rationale
provided by the ARPC/JA, Staff Judge  Advocate.   We  therefore  agree
with the opinions and recommendation of  the  Air  Force  Reserve  and
adopt its rationale as the basis for our conclusion that the applicant
has not been the victim of an error or injustice.  Therefore,  in  the
absence of 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 probable  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-
2006-01026 in Executive Session on 19 July 2006, under the  provisions
of AFI 36-2603:

      Mr. Michael J. Novel, Panel Chair
      Ms. Barbara R. Murray, Member
    Mr. Reginald P. Howard, Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2006-01026 was considered:

   Exhibit A.  DD Form 149, dated 4 May 06, w/atchs.
   Exhibit B.  Applicant’s Master Personnel Records.
   Exhibit C.  Letter, ARPC/JA, dated 23 May 06.
   Exhibit D.  Letter, SAF/MRBR, dated 26 May 06.
   Exhibit E.  Applicant's Response, dated 21 Jun 06




                                   MICHAEL J. NOVEL
                                   Panel Chair