RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01454
            INDEX CODE:  110.02

            COUNSEL:  JOEL RICHARDSON

            HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His Authority and Reason for Discharge be changed from Misconduct  and
his Reenlistment Eligibility (RE) code be changed to “Eligible.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

Two subordinates wrote false statements stating he had  made  sexually
derogatory comments about a female in their work area.  When he  asked
to see  the  statements  he  was  denied  by  his  commander  and  his
supervisor.  The commander eventually called everyone in the shop into
his office  to  determine  whether  or  not  applicant  had  made  the
derogatory statements.  All other personnel save the two  subordinates
could not verify he had made the  remarks.   Prior  to  his  commander
questioning him about the statements, he was read his Miranda  rights.
He was able to see a JAG once.  While his commander questioned him  he
was not allowed to have legal counsel present.  After several refusals
by his commander to allow him to be questioned with counsel, they both
began to get very angry with one  another.   After  a  break,  he  was
called into the commander’s office and found the  unit  attorney,  his
commander, the unit commander and the Military Equal Opportunity (MEO)
officer waiting for him.  He was told to sign discharge documents that
discharged him with a General, Under Honorable  Conditions  discharge.
He was told again he would not be allowed  any  counsel  but  that  he
should sign the  General  discharge  papers  or  he  would  receive  a
dishonorable discharge.  He felt as if he had  to  sign  in  order  to
avoid a dishonorable discharge.

In support of his  appeal,  the  applicant  has  provided  a  personal
statement and copies of his  National  Guard  Bureau  (NGB)  Form  22,
Report of Separation and Record of Service, an MEO complaint,  several
email trails, a Letter of Notification for Involuntary Discharge,  and
a commanders report.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant joined the Army National Guard (ARNG) on  21  January  1988.
He served several satisfactory years and enlisted in the Air  National
Guard (ANG) on 28 October 1999.  He was progressively promoted to  the
grade of technical sergeant with a date of  rank  (DOR)  of  1  August
2001.  On 27 January 2004, he was barred from entering  the  ANG  Base
(ANGB).   On  7 February  2004,  his  commander  issued  a  Letter  of
Notification (LON) for Involuntary Discharge.   The  LON  specifically
stated he was being involuntarily discharged  with  a  general,  Under
Honorable Conditions discharge for Misconduct due to  insubordination,
alleged threats, and creating  disturbance  resulting  in  an  adverse
effect on morale, production, or maintenance of proper discipline.  In
February  2004,  he  submitted  a  Conditional  Waiver  Administrative
Discharge Board but on 2 March 2004 he asked that it be withdrawn.  As
he had already been  discharged,  his  request  was  denied.   He  was
involuntarily  discharged  effective  19 February  2004  after  having
served 14 years, 5 months, and 22 days of satisfactory service.

_________________________________________________________________

AIR FORCE EVALUATION:

ANG/A1P0F recommends denial.  A1P0F contends he  was  discharged  from
the OKANG in accordance with  Air  Force  Instruction  (AFI)  36-3209,
Separation and Retirement Procedures for ANG and  Air  Force  Reserve,
for Misconduct.  A1POF could find  no  error  or  injustice  with  his
discharge and therefore could not support his request.

A1P0F’s complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
11 August 2006 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 timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of error or injustice.  The Board took  note  the  discharge
package  included  with  the  applicant’s  request.  However,  it   is
difficult to attach any sort of credence to the package as  it  is  at
best incomplete and at worst an  apparent  attempt  to  discharge  the
applicant without due process.  Persons in his chain–of-command signed
the discharge package, but not one of the documents in the package was
ever signed or appropriately acknowledged by  the  applicant  himself.
His allegation he asked for  and  was  denied  legal  counsel  is  not
addressed by either his unit or the Air National Guard (ANG) Office of
Primary Responsibility (OPR).  Further,  it  appears  his  request  to
withdraw  both  his  conditional  discharge  and  his  waiver  of   an
Administrative Discharge  Board  (ADB)  were  not  considered  as  the
Adjutant General (TAG) had already signed  his  discharge  order.   In
view of the above and in order to preclude any possibility of an error
or an injustice, we believe the applicant’s  reenlistment  eligibility
should  be  changed  to  allow  him  the  opportunity  to  apply   for
reenlistment.  However, whether or not he is successful will depend on
the needs of the ANG and our recommendation in no way guarantees  that
he  will  be  allowed  to  return  to  any  branch  of  the   service.
Accordingly, we recommend that his records be corrected to the  extent
indicated below.

______________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that on 19  February  2004,
he was discharged with a reenlistment eligibility of “Eligible.”

______________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-
2006-01454  in  Executive  Session  on  4  October  2006,  under   the
provisions of AFI 36-2603:

      Mr. Christopher D. Carey, Panel Chair
      Mr. Steven A. Cantrell, Member
      Ms. Renee M. Collier, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, ANG/A1POF, dated 8 Aug 06, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 11 August 2006.




                                   CHRISTOPHER D. CAREY
                                   Panel Chair



                         DEPARTMENT OF THE AIR FORCE
                                WASHINGTON DC


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Office Of The Assistant Secretary



AFBCMR BC-2006-01454




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 APPLICANT, be corrected to show that on 31 May 2002,
he was discharged with a reenlistment eligibility of “Eligible.”





     JOE G. LINEBERGER

     Director

     Air Force Review Boards Agency