RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2006-03259
                                       INDEX CODE:  110.02
      XXXXXXXXXXXXXXXXXX                COUNSEL: NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  24 January 2008


_________________________________________________________________

APPLICANT REQUESTS THAT:

His narrative reason for  separation  be  changed  to  “convenience  of  the
government” and his separation code be changed so he can  join  the  Reserve
components.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Actions by the Air Force Discharge Review Board  (AFDRB)  were  inconsistent
and incomplete.  In addition, his discharge was unjust and improper.

In support of his appeal, the applicant provides  a  personal  statement;  a
copy of the 1 December 2005 AFDRB Hearing Record and application.

A copy of the applicant’s  complete  submission,  with  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 18 December 1980, the applicant was appointed a second lieutenant in  the
Air Force Reserve.  On 24 March 1981, the applicant was  ordered  to  active
duty to serve as a Judge Advocate.  He was  progressively  promoted  to  the
grade of major with a date of rank of 1 July 1987.  On 16  August  1987,  he
was honorably discharged under the authority of Air Force  Regulation  (AFR)
36-12, with a narrative reason for separation  as  voluntary  resignation  –
miscellaneous reasons.  He served 6 years, 4 months, and 23 days  on  active
duty.

Following his medical training  under  the  Health  Professions  Scholarship
Program, the applicant was ordered to  extended  active  duty  effective  13
June 1991, in the grade of major with a date of rank of 13 June 1991.

On 9 March 1992, the applicant was given an  Article  15  for  violation  of
Article 86, Failure to Go (two  counts)  and  making  a  false  statement  -
Conduct Unbecoming an  Officer,  respectively,  of  the  Uniformed  Code  of
Military Justice (UCMJ).  His punishment consisted  of  forfeiture  of  $900
per month for two months.

On 6 June 1992, his commander  notified  the  applicant  he  was  initiating
action against  him  under  AFR  36-12,  Chapter  3,  paragraph  3-7d.   His
commander cited the applicant’s numerous  incidents  of  misconduct  as  the
reasons for his actions.  The applicant’s misconduct  included  his  failure
to perform duties in the Emergency Room for a period of 48 hours between  30
July 1991 and 27 August 1991; the applicant’s failure  to  go  at  the  time
prescribed as the surgery intern on call  on  21  October  1991;  on  divers
occasions between 23 October  1991  and  19  November  1991,  the  applicant
failed to go to his appointed place of duty; between on or about 23  October
1991 and 19 November 1991, he made false statements that he had been  placed
on quarters for illness and that his father had died;  on 11  November  1991
for the purpose of securing leave,  he  made  a  false  statement  that  his
father had died; on 28 February 1992 he absented himself from his  unit  and
remained absent until 2 March 1992; and on 30 March 1992 and  1  June  1992,
while enrolled in an alcohol rehabilitation program,  he  was  found  to  be
drunk.

The applicant acknowledged receipt of the  notification;  consulted  counsel
and, on 23 June 1992, he submitted a statement in his own behalf  requesting
he be permitted to remain in the  Air  Force  based  on  his  past  military
record.

On 30 June 1992, the applicant was given an  Article  15  for  violation  of
Article 86, Failure to  Go,  of  the  UCMJ.   His  punishment  consisted  of
forfeiture of $300 per month for two months.

On  3  July  1992,  the  applicant  submitted  his  resignation   from   all
appointments in the Air Force in lieu of further  action  under  AFR  36-12.
He indicated in his  letter  that  he  understood  if  his  resignation  was
accepted,  he  would  be  discharged  with  a   general   (under   honorable
conditions) discharge unless the Secretary of the Air  Force  determined  he
would be honorably discharged.

On  10  July  1992,  his  commander  endorsed  the  applicant’s  letter   of
resignation and recommended it be approved for  a  general  discharge.   The
Office of the Staff Judge Advocate found the case to be  legally  sufficient
and concurred with the medical commander’s recommendation.

On 10 August 1992, the Secretary of the Air Force accepted  the  applicant’s
request for resignation and directed he be discharged with a general  (under
honorable conditions) discharge.

On 24 August 1992, the applicant was separated from the Air Force under  the
provisions of AFR 36-12, Administrative Separation of Commissioned  Officers
(voluntary resignation – dereliction – serious  recurring  misconduct  –  in
lieu of involuntary discharge), with a general (under honorable  conditions)
discharge.  He had served on active duty for a total period of  7  years,  7
months, and 27 days.

On 24 June 2004,  the  applicant  submitted  an  application  to  the  AFDRB
requesting his general (under honorable conditions) discharge be changed  to
honorable and his narrative reason for separation  changed  to  “convenience
of the government.”  The AFDRB considered all the  evidence  of  record  and
concluded the discharge was consistent with the procedural  and  substantive
requirements of the discharge regulations and within the discretion  of  the
discharge  authority;  and,   that   the   applicant   was   provided   full
administrative due process.  The AFDRB recognized the applicant  had  served
over seven years total service  before  the  discharge  was  initiated,  but
concluded the seriousness of his misconduct offset the positive  aspects  of
his duty performance.

On 20 May 2005, the applicant submitted another  application  to  the  AFDRB
requesting his general (under honorable conditions)  discharge  be  upgraded
to  honorable  and  his  narrative  reason   for   separation   changed   to
“convenience of the government.”  Following the applicant’s  appearance  and
testimony before the AFDRB,  the  board  believed  the  comparatively  brief
period of misconduct displayed by the applicant while  in  training  was  an
aberration and that  his  military  service  should  be  more  appropriately
characterized  as  honorable.   However,  the  AFDRB  felt  the  reason  and
authority for the applicant’s discharge should remain unchanged.

On  10  November  2005,  AFPC  corrected  the  applicant’s  DD   Form   214,
Certificate of Release  or  Discharge  from  Active  Duty,  to  reflect  his
characterization of service as honorable.
_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial  of  the  applicant’s  request  to  change  his
narrative reason for discharge.  DPPRS states the discharge  was  consistent
with  the  procedural  and  substantive  requirements   of   the   discharge
regulation and was within the discretion of the  discharge  authority.   The
applicant did not submit any evidence or identify any errors  or  injustices
that occurred in the discharge  processing  and  the  narrative  reason  for
separation should not be changed.

The DPPRS evaluation is at Exhibit C.

ARPC/JA recommends  the  applicant’s  request  be  denied.   JA  states  the
applicant has failed to establish an error or injustice  warranting  relief.
The  basis  for  the  applicant’s  discharge  was  not  alcohol   abuse   or
alcoholism, but rather, recurring  or  serious  misconduct.   While  perhaps
alcohol  related,  these  multiple  incidents  represent  willful  acts   of
misconduct, punishment  for  which  included  two  Article  15  Non-judicial
Punishments.  The  applicant  states  the  whole  basis  for  his  “aberrant
behavior” was  clinical  depression.   We  can  find  no  evidence  that  an
official Air Force medical finding to that effect was ever made  and  it  is
apparent that no medical evidence was discovered that was serious enough  to
have required  the  applicant’s  referral  into  the  disability  evaluation
system (DES).   Moreover,  the  other  medical  evidence  submitted  by  the
applicant points to a DSM IV type disorder – which  would  not  have  thrown
the applicant into the DES, but would itself have  supported  an  additional
basis for discharge under Chapter  2  of  AFR  36-12  for  a  character  and
behavior disorder.  What  is  significant  is  that  none  of  the  evidence
offered by the applicant, even if accurate, exonerates him with  respect  to
the repeated acts of misconduct he committed.  Those  acts  fully  supported
the basis for discharge that was chosen by his commander.

JA states it was the commander’s decision to initiate  the  discharge,  made
after consultation with the servicing staff judge advocate, and  appropriate
for the reasons supported by all the evidence  he  had  to  consider.   That
evidence constituted acts of misconduct within the  meaning  of  AFR  36-12,
Chapter 3, paragraph 3-7d.  Being a lawyer himself, and  after  consultation
with counsel, the applicant made a conscious decision in 1992 to resign  his
commission in lieu  of  further  discharge  processing.   In  so  doing,  he
knowingly waived  his  opportunity  to  present  additional  evidence  –  to
include any medical evidence he believed might be relevant  –  knowing  full
well the results this would have on his Air Force record.

The JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He is not asking the Board to excuse his  behavior,  but  to  recognize  the
discharge was not just and equitable.  His commander  had  a  duty  to  deal
with his aberrant behavior in a fair and just manner.  He did not.   The  JA
advisory does not review  the  discharge  objectively  and  accurately,  and
therefore, the Board should disregard it for what it  is.   In  making  this
request, he asks the Board to review the evidence of the true nature of  his
behavior in 1992 and grant the relief he requests.

The applicant’s rebuttal is at Exhibit F.

_________________________________________________________________

THE BOARD DETERMINES 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.  The applicant did not provide  persuasive
evidence showing the information in the discharge case file was  erroneous,
his substantial rights were violated, or that his commanders  abused  their
discretionary authority.  We find the SPD code and the narrative reason for
separation that was issued  at  the  time  of  the  applicant’s  separation
accurately reflects the circumstances of his separation, and we do not find
these codes to be in error  or  unjust.   In  addition,  we  have  seen  no
evidence indicating he was not afforded all rights to which entitled during
his discharge processing.  After thoroughly reviewing the transcript of the
2005 AFDRB hearing, we find the relief they granted a  reasonable  exercise
of their authority, but feel  that  the  relief  requested  of  this  Board
exceeds what would be appropriate.  We note first that the AFDRB  does  not
use the error or injustice standard that governs  the  AFBCMR.   Rather  it
uses the criteria of inequity and/or impropriety in determining whether the
character of a discharge should be upgraded or  whether  the  basis  for  a
discharge  should  be  changed.   Secondly,   its   governing   instruction
specifically allows an upgrade even  when  there  is  not  an  inequity  or
impropriety based upon what can best be described as a consideration of all
the surrounding facts and circumstances.  In this case, the AFDRB found the
applicant’s discharge was consistent with the  procedural  and  substantive
requirements  of  the  discharge  regulation  and  was  within  the   sound
discretion of the discharge authority.  However, it appears the AFDRB  felt
the applicant’s period of  misconduct  was  an  aberration,  and  that  his
overall military service should  be  more  appropriately  characterized  as
honorable.  Nevertheless, they  felt  the  reason  and  authority  for  the
applicant’s  discharge  was  appropriate.    The   Board   considered   the
applicant’s service prior  to  his  period  of  misconduct  and  after  his
separation; however, we do not find clemency is appropriate  in  this  case
based  on  the  gravity  of  the  offenses  which  led  to  his  discharge.
Therefore, in view of the foregoing, we conclude that no basis exists  upon
which  to  recommend  favorable  action  on  the  relief  sought  in   this
application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

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 this application in  Executive
Session on 29 August 2007, under the provisions of AFI 36-2603:

                 Mr. Thomas S. Markiewicz, Chair
                 Mr. Gregory A. Parker, Member
                 Mr. Joseph D. Yount, Member

The following documentary evidence was considered for AFBCMR  Docket  Number
BC-2006-03259:

      Exhibit A.  DD Form 149, dated 28 Oct 06, w/atchs.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/DPPRS, dated 6 Nov 06.
      Exhibit D.  Letter, AFPC/JA, dated 15 Nov 06.
      Exhibit E.  Letter, SAF/MRBR, dated 1 Dec 06.
      Exhibit F.  Applicant’s Rebuttal, dated 11 May 07.




                                  THOMAS S. MARKIEWICZ
                                                   Chair