RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-01174
                                             INDEX CODE:  106.00
      XXXXXXXXXXXXX                     COUNSEL:  NONE

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  4 October 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

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

________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge should be upgraded due to  the  fact  he  served  his  initial
obligation of four years.

He admitted to an infraction that he was not guilty of.

In addition  to  the  negative  views  his  present  discharge  presents  to
employers, the discharge inhibits the possibility of federal  employment  in
his present state of residence.

Applicant’s complete submission is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 2 July 1979, and served as  a
Law Enforcement Specialist.

Although not used as a basis for discharge, applicant’s records contain  the
following derogatory data:

      a.    Denial of Air Force Good Conduct Medal, dated 10 June 1981


      b.    Non-recommendation for reenlistment, dated 17 December 1981


      c.    Non-recommendation for reenlistment, dated 22 June 1982


      d.    Vacation of NCO Appointment, dated 17 August 1983

On 24 October 1983, applicant was notified  of  his  commander's  intent  to
recommend him for an under  honorable  conditions  (general)  discharge  for
misconduct – pattern of minor disciplinary infractions, specifically:

        a. Article 15, dated 13 May 1981, for, on or  about  28 April  1981,
           being disrespectful in language towards a superior  NCO  who  was
           then in the execution of his office, and  for,  on  or  about  28
           April 1981, failing to obey a lawful order of a superior NCO  who
           was then in the execution of his office, by failing to sweep  and
           police up an area after being directed to do  so,  for  which  he
           received a suspended reduction to the grade of Airman  (E-2)  and
           forfeiture of $25.00 pay per month for three months

        b. Letter of Reprimand, dated 27 July 1983, for, on or about 17 July
           1983, becoming involved in a domestic disturbance at his quarters
           in base housing which resulted in damage to government property

        c. Letter of Reprimand, dated 22 August 1983, for, on  or  about  17
           July 1983, rendering a urinalysis sample, Commander Directed as a
           result of the circumstances surrounding a domestic disturbance at
           his government quarters, which tested positive for marijuana

The commander advised applicant of  his  right  to  consult  legal  counsel,
submit statements in his  own  behalf,  or  waive  the  above  rights  after
consulting with counsel.

On 24 October 1983, after consulting  with  counsel,  applicant  waived  his
right to submit a personal statement and requested  a  personal  appointment
before the discharge authority.   On  3 November  1983,  he  was  placed  on
medical hold due to a problem discovered in his separation physical.

A legal review was conducted on 4 November 1983, in which  the  staff  judge
advocate recommended applicant be discharged for misconduct with  a  general
discharge characterization.  On 17 November 1983, the  discharge  authority,
directed  that  applicant   be   discharged   with   a   general   discharge
characterization, and stated that he did not  take  into  consideration  the
positive urinalysis result when he characterized his discharge as general.

Applicant was discharged on 22 November 1983, in the grade of Senior  Airman
(E-4), with an under honorable conditions discharge, in accordance with  AFR
39-10, paragraph 5-46,  for  misconduct  –  pattern  of  minor  disciplinary
infractions.  He served a total of four years, four months, and 21 days.

A resume of applicant's performance reports follows:

      PERIOD ENDING                     OVERALL EVALUATION

      21 Oct 1983                       7
      30 Mar 1983                       8
      10 Oct 1982                       8
      10 Oct 1981                       9
       5 Jan 1981                            8

Applicant is entitled to wear the Air Force  Training  Ribbon  and  the  Air
Force Longevity Service Award Ribbon.

Pursuant to the Board’s request, the Federal Bureau of Investigation  (FBI),
Clarksburg, WV, provided a copy of  an  Investigation  Report  which  is  at
Exhibit C.

________________________________________________________________

AIR FORCE EVALUATION:

None.  The applicant has not shown the  characterization  of  his  discharge
was contrary to AFR 39-10 (extract copy attached as Exhibit F), nor  has  he
shown that the nature of the discharge was unduly harsh or  disproportionate
to the offense  committed.   At  the  time  of  his  discharge,  AFR  39-10,
paragraph 1-18b, stated that characterization  of  service  as  general  was
warranted  if  an  airman’s  service  had  been  honest  and  faithful,  but
significant negative aspects of the airman’s conduct or performance of  duty
outweighed positive aspects of the airman’s  military  record.   AFR  39-10,
paragraph 5-46, further stated  that  a  pattern  of  misconduct  consisting
solely of minor disciplinary infractions in the current enlistment makes  an
airman subject  to  discharge.   The  infractions  contemplated  under  this
section may involve failure  to  comply  with  non-punitive  regulations  or
minor offenses under the UCMJ.  Infractions of this type result, as a  rule,
in  informal  (reduced  to  writing)  or  formal  counselings,  letters   of
reprimand, or Article 15 nonjudicial punishments.

The applicant has not alleged any impropriety in the  manner  in  which  the
discharge was conducted, and  the  record  indicates  he  was  afforded  all
rights to which he was entitled.  However, notwithstanding  the  absence  of
error or injustice, the Board has the prerogative to  grant  relief  on  the
basis of clemency if so inclined.

On 17 April 2007, the SAF/MRB  Legal  Advisor  provided  a  generic  opinion
concerning service characterization which is contained at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the 17 April 2007 SAF/MRB Legal  Advisory  was  forwarded
to the applicant on 9 May 2007, for  review  and  comment  within  30  days.
However, as of this date, no response has  been  received  by  this  office.
Additionally, applicant was  given  a  chance  on  9  May  2007  to  provide
information within 30 days pertaining to his activities  since  leaving  the
service.  As of this date, no response has been received by this office.

A copy of the FBI, Clarksburg, WV, Report of Investigation was forwarded  to
the applicant on 9 May 2007 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 not timely filed; however, it is in the interest  of
justice to excuse the failure to timely file.

3.  We  find  no  impropriety  in  the  characterization  of   applicant's
discharge.  It appears  that  responsible  officials  applied  appropriate
standards in effecting the separation,  and  we  do  not  find  persuasive
evidence that pertinent regulations were violated or  that  applicant  was
not afforded all the rights to which entitled at the  time  of  discharge.
We conclude, therefore, that the discharge  proceedings  were  proper  and
characterization  of  the  discharge  was  appropriate  to  the   existing
circumstances.

4.  We also find insufficient evidence to warrant  a  recommendation  that
the discharge be upgraded on the basis of clemency.   We  have  considered
applicant's overall quality of service, the events which precipitated  the
discharge, and  the  absence  of  any  evidence  related  to  post-service
activities and accomplishments.  Based  on  the  evidence  of  record,  we
cannot conclude that clemency is warranted.  Applicant  has  not  provided
any information concerning his post-service activities and accomplishments
for us to conclude that he has overcome the behavioral traits which caused
the discharge.  Should he provide statements from  community  leaders  and
acquaintances attesting to his good character  and  reputation  and  other
evidence  of  successful  post-service  rehabilitation,  this  Board  will
reconsider this case based on  the  new  evidence.   We  cannot,  however,
recommend approval based on the current evidence of record.

5.  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 issue(s) 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  Docket  Number  BC-2007-01174
in Executive Session on 11 July 2007, under the provisions of AFI 36-2603:

                       Mr. Michael J. Novel, Panel Chair
                       Ms. Karen A. Holloman, Member
                       Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 4 Apr 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, US DOJ FBI, dated 27 Apr 07.
    Exhibit D.  Letter, SAF/MRB Legal Advisor, dated 17 Apr 07.
    Exhibit E.  Letter, AFBCMR, dated 9 May 07.
    Exhibit F.  AFR 39-10 Extracts, dated 1 Oct 82.




                                   MICHAEL J. NOVEL
                                   Panel Chair