RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02992
            INDEX NUMBER:  110.00
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  No


MANDATORY CASE COMPLETION DATE:  29 Mar 08


_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge from the Air Force be set aside and he be reinstated  to
active duty.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Based on the discharge notification by his commander that he was being
discharged under AFI 36-3208, paragraph 5.65, “Failure in the  Fitness
Program,” and being informed that he would be entitled  to  separation
pay,  he  elected  to  waive  his  right  to  a  hearing   before   an
administrative discharge board.

After being served his discharge notification, he subsequently learned
that he was not being discharged under AFI  36-3208,  paragraph  5.65,
but paragraph 5.26.6 and that he was not entitled to  separation  pay.
If he had known he would not receive separation  pay,  he  would  have
elected to meet an  administrative  discharge  board  and  fought  his
discharge.

His ability to pass the fitness tests was impaired by, but not limited
to, the following factors:

        a.  A Failed marriage

        b.  Chronic right knee pain only treated with Motrin  for  the
past 11 years.

        c.  Hospitalization for Sepsis, Tonsillectomy, and IPPP [sic].

In support of his appeal the applicant provides a copy of his original
DD Form 214, a corrected DD Form 214, and paperwork pertaining to  his
administrative discharge.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 25 Aug  94.   On
18 Jul 06, his squadron commander notified him he was recommending his
discharge from the Air  Force  for  failure  in  the  fitness  program
according to AFPD 36-32, Military Retirements and Separations and  AFI
36-3208, Administrative Separation of Airmen, under the provisions  of
paragraph 5.65.  The reasons for  the  commander’s  actions  were  the
applicant’s failure of the fitness test a total of six times  from  on
or about 8 Apr 05 to 28 Apr 06.  The applicant was  advised  that  the
commander was recommending an honorable  discharge  and  that  if  the
applicant’s discharge  were  approved,  he  would  be  ineligible  for
reenlistment in the Air  Force,  probably  denied  enlistment  in  any
component of the  armed  forces,  and   any  special  pay,  bonus,  or
education assistance funds might have to be repaid.

The applicant was advised of his rights to  consult  counsel,  present
his case to an administrative discharge board, be represented by legal
counsel at a board hearing, and to submit statements in his own behalf
in addition to, or in lieu of, the board hearing.  The  applicant  was
further advised that he must consult counsel prior to waiving  any  of
his rights.  The applicant acknowledged receipt on  18  Jul  06.   The
applicant subsequently  consulted  counsel,  waived  his  right  to  a
hearing before an administrative discharge board and elected to submit
a statement in his  own  behalf.   In  his  statement,  the  applicant
indicated he was not seeking to remain in the Air Force at that time.

After considering the applicant’s written statement,  the  applicant’s
squadron commander recommended to the wing commander the applicant  be
separated from the Air Force for failure in the  fitness  program  and
that he receive an honorable  character  of  service.   Probation  and
rehabilitation was not  recommended  because  the  applicant  had  not
demonstrated the potential to serve satisfactorily.

The wing staff judge advocate (SJA) reviewed  the  proposed  discharge
package and found it legally  sufficient  to  support  a  decision  to
accept the applicant’s submitted waiver and to separate the applicant.
 The SJA pointed out the notification provided to the applicant  cited
failure in the fitness program and AFI 36-3208, paragraph 5.65 as  the
action.  However,  the  documents  should  have  cited  unsatisfactory
performance: failure to meet minimum fitness standards  and  paragraph
5.26.6 as directed by paragraph 5.65.  The SJA opined that  the  error
was harmless  and  did  not  affect  the  applicant’s  substantive  or
procedural rights.  The  commander’s  notification  should  have  also
stated it was the applicant’s fifth failure within a  24-month  period
rather than “fourth failure.”

On 11  Aug  06,  the  wing  commander  recommended  to  the  discharge
authority that the applicant’s waiver be  accepted,  he  be  given  an
honorable   discharge,   and   discharged   without   probation    and
rehabilitation.  The applicant was  discharged  on  15  Aug  06.   The
applicant was initially provided a DD Form 214 that listed the  reason
for his discharge as “weight  control  failure,”  separation  code  of
“HCR,” and a reenlistment eligibility code (Re) of “2C,” involuntarily
separated  with  an  honorable  discharge.   This  DD  Form  214   was
subsequently voided and replaced with a corrected version that  listed
the  narrative  reason  for  separation   as   “physical   standards,”
separation code “HFT,” and Re code of “2C.”

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS  recommends  denial  of   the   applicant’s   request   for
reinstatement to active duty.  However, based on  the  errors  in  the
commander’s discharge notification  letter,  they  “have  no  problem”
authorizing the applicant one-half separation pay.

The applicant contends he would not have waived his right to a hearing
before an administrative discharge board if he had known he would  not
receive one-half separation pay.  However, based on the  documentation
on file in the master personnel records, chances are  the  outcome  of
the discharge action would have been the same.

The complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
15 Dec 06 for review and comment within 30 days.  To date, a  response
has not been received.

_________________________________________________________________


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by  existing  law
or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate
the existence of error or injustice regarding the  applicant’s  request
for reinstatement in  the  Air  Force.   The  applicant  has  presented
insufficient evidence to show that the basis of  the  discharge  action
initiated against him was incorrect.  We  note  the  applicant  himself
indicates he  accepted  the  discharge  action  and  waived  his  board
entitlement when he thought it would entitle  him  to  separation  pay.
His primary objection, now, appears to be based on  the  fact  that  he
lost entitlement to separation pay when corrections were  made  to  the
discharge action, not that there was not a  basis  for  discharge.   In
that regard, we note the Air Force office of  primary  responsibility’s
statement  they  do  not  object  to  the  applicant  being  authorized
separation pay based on procedural errors committed  during  processing
of the discharge.  In reviewing the evidence of record, we  agree  with
this position and recommend that the applicant’s records  be  corrected
to authorize separation pay.  However, we note that in  order  for  the
applicant to be authorized separation pay, he will have to be separated
with a separation code that authorizes it.  Since a policy change  made
the separation code the applicant  was  originally  given  invalid,  we
recommend as an exception to policy he retain this code  entitling  him
to separation pay.  Therefore, we recommend the applicant’s records  be
corrected as 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  as  an  exception  to
policy he was discharged on 15 August 2006 under the provisions of  AFI
36-3208 with a Separation  Program  Designator  (SPD)  code  of  “HCR,”
“Weight Control Failure,” with entitlement to one-half separation pay.

_______________________________________________________________

The following members of the Board considered  Docket  Number  BC-2006-
02992 in Executive Session on 18 January 2007 under the  provisions  of
AFI 36-2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Terri G. Spoutz, Member
      Ms. Mary C. Puckett, Member

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

     Exhibit A.  DD Form 149, dated 21 Sep 06, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Memorandum, AFPC/DPPRS, dated 13 Nov 06.
     Exhibit D.  Letter, SAF/MRBR, dated 15 Dec 06.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair



AFBCMR BC-2006-02992


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 as an
exception to policy he was discharged on   15 August 2006 under the
provisions of AFI 36-3208 with a Separation Program Designator
(SPD) code of “HCR,” “Weight Control Failure,” with entitlement to
one-half separation pay.




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency