RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBER:  BC-2007-01440
            INDEX CODE: 112.10
      XXXXXXX                     COUNSEL:  TERRY F. NEALY
                                   HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: 11 NOVEMBER 2008

______________________________________________________________

APPLICANT REQUESTS THAT:

1.  His  reenlistment  eligibility   (RE)   reason   of   "ineligible   for
reenlistment" be removed or replaced with "eligible  for  reenlistment"  in
block 26 of his NGB Form 22.

2.  His narrative reason for  separation  (Unsatisfactory  Performance)  be
changed.

3.  He receive a DD Form 214, Certificate  of  Release  or  Discharge  from
Active Duty for the period he served in support of Operation Noble Eagle.

4.  He be granted clemency to reclaim his military status and rank as if he
had never been discharged.

________________________________________________________________

APPLICANT CONTENDS THAT:

The narrative reason he received was unjust when considering  the  totality
of the circumstances, in particular, his records prior to the conduct  that
resulted in his discharge decision.  He was not afforded the opportunity to
demonstrate rehabilitation.   He  also  repaid  the  outstanding  financial
obligation before discharge actions were ensued against him.  In  addition,
if he had been counseled that a discharge  with  "ineligible  to  reenlist"
remarks would be permitted with an honorable service  characterization,  he
could have rebutted the basis for his discharge and presented  evidence  of
his entire military career, demonstrated  rehabilitation,  and  could  have
petitioned Air Force leadership  to  deny  the  discharge  and  retain  his
services.  The "ineligible to reenlist" derogatory  statement  changed  the
terms he agreed to when he waived his rights  to  challenge  the  discharge
pending receipt of "no less" than an honorable discharge.  It was  also  an
error for him not to receive a DD Form 214 to accurately  account  for  the
honorable military service provided to his country in a time  of  war.   In
addition, he is requesting the Board's favorable consideration for clemency
in order to grant his prayers for relief and facilitate his eligibility  to
reclaim his military status and rank as if he had never been discharged  so
he can continue to fight in the global war on terrorism.  If  his  squadron
had acknowledged that he honored his pledge to repay the  debt,  sufficient
mitigating circumstances, including but not limited to his Marine  and  Air
Force record, and recent promotion, would have warranted a hearing board to
conclude he  should  not  be  discharged.   Moreover,  in  order  to  avoid
injustice, a neutral board would have had the opportunity  to  conclude  he
warranted an opportunity at a second chance to prove he was fit  to  serve.
His counsel  did  not  ensure  his  squadron  characterized  his  repayment
properly, his counsel did not insist that his squadron acknowledge  he  had
paid the debt in full, thereby negating a chief basis  for  the  discharge.
Finally, his  counsel's  representation  of  the  honorable  discharge  vs.
conditional rights waiver nuances failed to prepare him for the fact he may
receive an honorable discharge yet still be  classified  as  ineligible  to
reenlist in the Air Force.  It is a manifested unjust result  when  someone
does not understand he or she may never be eligible to serve in the uniform
again, notwithstanding the fact that the character  of  service  is  deemed
honorable.

In support of his request, the applicant submits a letter from his counsel;
addendum of exhibits, and exhibits in support of his application.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

Data extracted from the personnel data system reflect on 9 October 1991,  he
enlisted in the Air National Guard.  On 15 May 1995, the applicant  enlisted
in the United States Marine Corps (USMC).  On 15 May 1999, he was  honorably
discharged from the USMC and transferred to the USMC Reserves.  On  27  July
1999 he enlisted in the Air National Guard.  On 7 Feb 2004, he was  notified
by his commander of his intent to recommend he be discharged  from  the  Air
National Guard  (ANG)  under  the  provisions  of  AFI  36-3209,  Separation
Procedures for Air National Guard and Air Force Reserve  Members,  paragraph
3.18,  Unsatisfactory  Performance,  to  include  3.18.1  (Substandard  Duty
Performance) and 3.18.4 (Irresponsibility  in  the  Management  of  Personal
Finances); and paragraph 3.21, Misconduct, to include 3.21.2.4  (Failure  to
Meet Financial Obligations) and 3.21.3 (Commission of a Serious Offense).

The specific reasons for these actions were that he dishonorably  failed  to
make timely payments on the Government Travel Card (GTC) by failing to  make
scheduled payments on his debt and for being over 60 days past  due  of  his
obligation.  Also, at divers times during  September  2003,  he  violated  a
lawful general regulation, to wit:  paragraph 5.7, HQ FLANG Instruction  65-
104 dated April 2000 by wrongfully using his GTC  for  other  then  official
military/government related duties.
On 8 Feb 2004, his commander reviewed  the  applicant's  conditional  waiver
and  acknowledged  the  applicant  wished  to  waive  his   rights   to   an
administrative  discharge  board  conditional  on  receiving  an   honorable
characterization of service.  The commander considered his duty  performance
while in the unit and  recommended  acceptance  of  his  conditional  waiver
request.

On 30 April  2004,  he  was  discharged  from  the  ANG  for  unsatisfactory
performance.  His RE read “Ineligible" and his service was characterized  as
honorable.

He completed 12 years of satisfactory service.

The ANG is working with HQ ARPC to issue the applicant his DD Form  214  for
his service in support of Operation Noble Eagle.

________________________________________________________________

AIR FORCE EVALUATION:

NGB/A1POFC recommends partial relief.   A1POFC  states  the  applicant  was
discharged from the Florida National Guard (FLANG)  on  30 April  2004  for
misuse of his government travel credit card.  The state of Florida  adhered
to all policies and procedures within the administrative discharge process.
 The applicant submitted a conditional waiver which  was  accepted  by  the
state. In this waiver, he waived his rights to a discharge board hearing in
exchange for an honorable discharge.  The state is correct  in  stating  he
did not have an option to place a condition  on  reenlistment  eligibility.
Reenlistment eligibility determination is solely at the discretion  of  the
commander, who made the natural decision to  deem  the  member  ineligible.
Under no circumstances would an individual who had committed these offenses
be considered for enlistment in the  Air  National  Guard.   Regarding  his
request for clemency, no such consideration exists  in  the  administrative
discharge  process,  therefore,  this  office  does  not  recommend  relief
regarding request for clemency or changing reenlistment  eligibility.   The
applicant is also requesting DD Forms 214 for service performed in  support
of Operation Noble Eagle.  No evidence exists that DD Forms 214 were issued
for this service.  The applicant is entitled to DD Forms 214 for the period
of service performed and the state acknowledges that an error  occurred  by
not issuing them; therefore, this office recommends relief  regarding  this
issue.

The complete A1POFC evaluation is at Exhibit B.

NGB/A1POF concurs with A1POFC and recommends relief  be  granted  regarding
the issuance of DD Forms 214 but recommends denial of relief to change  his
reenlistment eligibility, narrative  summary  and  clemency.  The  complete
A1POF evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant's Counsel responded stating he does  not  believe  the  FLANG
letter appreciates the mitigating circumstances presented in  his  petition
for relief, including the fact that the attorney who handled the  case  did
not counsel him that his conditional waiver  would  forever  deny  him  the
opportunity to  re-enlist.   The  conditional  waiver  he  signed  did  not
indicate it would be diluted with a prejudicial RE code.  His attorney  did
not provide full disclosure that the conditional honorable discharge  would
include additional language, not seen in the waiver that would forever deny
him the opportunity to reenlist. In addition, the FLANG misunderstands  his
prayer  for  clemency.   He  wants  the  Board  to  understand  he  accepts
responsibility for his actions and wants to continue to serve  his  country
and respectfully requests the board grant clemency so he can re-enlist  and
support the war effort.

The complete response is at Exhibit E.

________________________________________________________________

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 an error or injustice regarding the  applicant’s  request  for
change to his reenlistment eligibility and the  narrative  reason  for  his
separation.  The Board took notice of the applicant's  complete  submission
in judging the merits of the case, however, the Board found  no  errors  in
the discharge processing, no evidence that he was denied rights to which he
was entitled and it appears  the  RE  assigned  and  narrative  reason  for
separation are appropriate and correct.  Therefore, the Board  agrees  with
the Air Force offices of primary responsibility that he has  not  been  the
victim of an error or injustice in connection  with  these  requests.   The
Board notes that HQ ARPC has taken action  to  issue  him  a  DD  Form  214
reflecting his service during Operation Noble Eagle.   In  the  absence  of
evidence to the contrary, the Board finds no compelling basis to  recommend
granting 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  Docket  Number  BC-2007-01440
in Executive Session on 8 November 2007, under the  provisions  of  AFI  36-
2603:

                 Mr. Laurence M. Groner, Panel Chair
                 Mr. Reginald P. Howard, Member
                 Ms. Teri G. Spoutz, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 26 April 2007, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C   Letter, NGB/A1POF, dated 17 September 2007.
    Exhibit D.  Letter, SAF/MRBR, dated 21 September 2007.
    Exhibit E.  Letter, Counsel, dated 19 October 2007.




            LAURENCE M. GRONER
            Panel Chair