RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-01087
            INDEX CODE:  110.02

            COUNSEL:  NONE
            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  6 OCTOBER 2008

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

His service would have been characterized as  honorable  if  the  government
had  not  “breached”  his  pretrial  agreement   (PTA)   and   involuntarily
discharged him.

His PTA states that the “government in  this  case  agrees  not  to  process
administrative discharge action against the  Accused  any  sooner  than  two
weeks after the childbirth of his wife but not later than 6 Dec 05.”

He was administratively discharged after the set  time  established  in  his
pretrial agreement.  A pretrial agreement is a  binding  agreement  that  is
protected by law.  He was served discharge papers on  8  Dec  05  which  was
clearly after the time period set [6 Dec 05].

In support of  his  request,  applicant  provides  his  personal  statement,
copies of his Pretrial Agreement and  Modification  of  Pretrial  Agreement,
and his notification of discharge letter.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 26 Sep 01, for  a  period  of
four years.

On 6 Oct 05, the applicant entered  into  a  PTA  with  the  Special  Court-
Martial Convening Authority in which  he  agreed  to  plead  guilty  to  one
specification of drunk and  disorderly  conduct  and  one  specification  of
unlawfully carrying a concealed weapon.  In return, the  government  agreed,
among other things, to extend applicant’s  enlistment  term  for  three  (3)
months, until 25 Dec 05, to allow his pregnant wife to receive medical  care
following his court-martial.

On 11 Oct 05, a Special Court-Martial was convened and  applicant  pled  and
was found guilty of both specifications by a military judge  sitting  alone.
Applicant  was  sentenced  to  forty-five  (45)  days  of  confinement   and
reduction  in  rank  to  airman.   During  the  court-martial,  the  parties
executed a modification to the  PTA  to  clarify  that,  if  the  government
elected to pursue an involuntary  separation  after  the  court-martial,  it
would not do so any earlier that  two  weeks  after  applicant’s  wife  gave
birth and no later than 6 Dec 05.

On 8 Dec 05, applicant’s commander notified him that  she  was  recommending
that he be discharged from the Air  Force  for  Misconduct-Commission  of  a
Serious Offense.  Applicant acknowledged  receipt  of  the  notification  of
discharge and after consulting with legal counsel, submitted  statements  in
his own behalf.  The Headquarters Air University legal office  reviewed  the
case and found it legally sufficient to support  discharge  and  recommended
an under honorable conditions  (general)  discharge  without  probation  and
rehabilitation.   The  discharge  authority  approved  the  separation   and
directed  an  under  honorable  conditions   (general)   discharge   without
probation and rehabilitation.

On 21 Dec 05, applicant was discharged in the grade  of  airman,  under  the
provisions  of  AFI  36-3208,  by  reason  of   misconduct,   with   service
characterized as under honorable  conditions  (general).   He  was  credited
with 4 years, 1 month, and 19 days of active military service.

On 26 Dec 05, applicant applied to the  Air  Force  Discharge  Review  Board
(AFDRB) requesting that his under honorable conditions  (general)  discharge
be upgraded to honorable.  After review  of  the  evidence  of  record,  the
AFDRB concluded that the discharge was consistent with  the  procedural  and
substantive requirements of the discharge  regulation  and  was  within  the
discretion of the discharge authority and that the  applicant  was  provided
full administrative due process.  In its  findings,  the  AFDRB  found  that
applicant’s evidence did not substantiate  an  inequity  or  impropriety  to
justify  upgrading  his  discharge.   Further,   the   AFDRB   opined   that
applicant’s PTA breach allegation was “without merit.”   The  AFDRB  further
concluded that there exists no legal or equitable basis for upgrade  of  his
discharge.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS recommends the application be denied,  and  states,  in  part,
based on the documentation on file in  the  master  personnel  records,  the
discharge was consistent with the procedural  and  substantive  requirements
of the discharge regulation.  The discharge was  within  the  discretion  of
the discharge authority.

Applicant did not submit any evidence or identify any errors  or  injustices
that occurred in the discharge processing.  He provided no facts  warranting
a change to his under honorable conditions (general) discharge.

The DPPRS evaluation is at Exhibit C.

HQ AFPC/JA recommends denial, and states no  error  or  injustice  has  been
established to warrant relief.  To obtain relief, the  applicant  must  show
by a preponderance of the evidence there  exists  some  error  or  injustice
warranting corrective action by the Board.  The United States  Claims  Court
has repeatedly defined  an  injustice  in  the  context  of  BCMR  cases  as
“treatment by military authorities that shocks the sense of  justice.”   The
applicant provides no persuasive  evidence  supporting  his  claim  that  he
suffered an injustice as a result of  receiving  his  involuntary  discharge
notification memorandum two days after the date  set  forth  in  his  court-
martial PTA.  Indeed, in its 15 Dec 05 legal review of applicant’s  proposed
involuntary separation, the Headquarters Air University legal  office  notes
that “the discharge did begin processing by the 6th, meeting PTA  provision,
it just was not served until 8 Dec 05.”  Thus, applicant’s  reliance  on  an
alleged breach of his PTA as  the  basis  for  upgrading  his  discharge  is
misplaced.  As noted,  the  AFDRB  previously  reviewed  his  discharge  and
denied applicant’s request  for  relief.   The  AFDRB  reaffirmed  that  the
applicant’s procedural rights were complied with  and  a  justifiable  basis
existed warranting the separation  authority’s  decision  to  discharge  the
applicant  for  misconduct.   The  AFDRB’s   conclusion   that   applicant’s
misconduct  was  a  significant  departure  from  conduct  expected  of  all
military members was correct.  Accordingly, JA agrees with  the  AFDRB  that
the discharge characterization the applicant received was appropriate.

The AFPC/JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 24 May 07, copies of the Air Force  evaluations  were  forwarded  to  the
applicant 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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinions and recommendations of the Air Force  offices  of  primary
responsibility and adopt their 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 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  Docket  Number     BC-2007-
01087 in Executive Session on 19 July 2007, under the provisions of AFI  36-
2603:

      Mr. Michael K. Gallogly, Panel Chair
      Ms. Teri G. Spoutz, Member
      Ms. Patricia R. Collins, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2007-
01087 was considered:

    Exhibit A.  DD Form 149, dated 12 Mar 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 15 May 07.
    Exhibit D.  Letter, AFPC/JA, dated 18 May 07.
    Exhibit E.  Letter, SAF/MRBR, dated 24 May 07.




                                             MICHAEL K. GALLOGLY
                                             Panel Chair