RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-02056
                                             INDEX CODE:  110.0, 110.02
      XXXXXXXXXXXXXXX                   COUNSEL:  XXXXXXXXXXXXXXXXX

                                             HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  29 December 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

His Characterization of Service be upgraded to honorable, and his  Narrative
Reason for Separation be changed to “Completion of Required Active  Service”
or “Conscientious Objector” (CO).

________________________________________________________________

APPLICANT CONTENDS THAT:

Security Forces personnel at Edwards  AFB,  CA,  unreasonably  discriminated
against him throughout his term as a  security  forces  airman  due  to  his
Asian heritage and status as  a  CO,  and  he  was  denied  fair  and  equal
treatment of the law.

The charges made against  him  offer  indirect  evidence  of  discriminatory
conduct in that the  charges  are  unusually  severe  given  the  underlying
conduct.  Furthermore, they are highly suggestive of fabrication  given  the
fact  that  they  are  uncorroborated  by  any  witness,  and  are  made  by
unreliable individuals.

Because much  time  has  passed  since  the  events  complained  of  in  his
application,  witnesses  can  no  longer  be  located   or   are   otherwise
unavailable to testify.  Because the charges were the primary basis for  his
initial discharge characterization, the invalidity and erroneous  nature  of
these charges  makes  his  current  characterization  and  narrative  reason
erroneous.

The charges stemmed from  three  separate  events  occurring  on  5 November
1998, 28 December 1998, and 18 January 1999.   Each  of  these  events  have
been grouped  with  their  respective  charges,  and  labeled  as  (1)  “The
Authorized Furlough After Conscientious Objector Status,”  (2)  “The  Locker
Incident & AWOL,” and (3) “The Voluntary Return from AWOL,” and are  further
addressed in his Legal Brief at Exhibit A.

In support of his appeal, he has furnished copies of a Legal  Brief,  signed
on 19 June 2007, his license to  practice  law,  dated  20  June  2007,  his
Resume, undated, and a DD Form 458, Charge Sheet, dated 27 January 1999.

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

________________________________________________________________

STATEMENT OF FACTS:

SAF/MRBR advises that  applicant’s  military  personnel  records  cannot  be
located by the National Personnel Records Center.   They  have  furnished  a
copy of his Air Force Discharge Review Board (AFDRB)  Hearing  Record,  Case
Number FD-2003-00270, Hearing Date 22 October 2004,  and  his  corrected  DD
Form 214, which are at Exhibit B.

Applicant enlisted in the Regular Air Force on 8 August 1998, and served  as
a security apprentice until his discharge.

Applicant voluntarily submitted a request for discharge in lieu of trial  by
court-martial.  A  DD  Form  458,  Charge  Sheet,  dated  27  January  1999,
considered by  the  AFDRB  and  furnished  by  him  with  this  application,
reflects the following Charges and Specifications:

        a. On or about 28 December 1998, he did, without authority and  with
           intent to remain away permanently, absent himself from his  unit,
           and did so remain absent  in  desertion  until  on  or  about  18
           January 1999

        b. On or about 5 November 1998, he was disrespectful  in  deportment
           toward  a  Staff  Sergeant  (SSgt),  a  superior  noncommissioned
           officer (NCO) then known by him to be a superior NCO who  was  in
           the execution of his office, by repeatedly interrupting the SSgt,
           rolling his eyes, and yelling during a counseling session

        c. On or about 18 January 1999, he  was  disrespectful  in  language
           toward a SSgt, a superior NCO, then known by him to be a superior
           NCO who was in the execution of his office, by repeatedly calling
           him f--khead and saying “from now on, I’m going to call  you  F--
           khead S----,“ or words to that effect

        d. On or about 18 January 1999, he  was  disrespectful  in  language
           toward a SSgt, a superior NCO, then known by him to be a superior
           NCO who was in the execution of his office, by making  derogatory
           comments to him and saying to him “how did a f--k like  you  ever
           become a {sic} NCO,” or words to that effect

        e. On or about 5 November 1998, knowing of his duties, was  derelict
           in the performance of those duties in that  he  did,  from  about
           2000 hours to about 0100 hours, willfully fail to perform any  of
           his assigned tasks

        f. On or about 5 November 1998, he wrongfully used provoking  words,
           to wit: “typical Mid-Western dumbass with no education,”  “dick,”
           “fag,” and “hey P----- f--k off ass hick that f—-ks his  mother,”
           or words to that effect, towards Airman First Class P-------

        g. On or about 28 December 1998, he wrongfully used provoking words,
           to wit: “mother f—-ker,” or words to that effect, towards  Airman
           First Class C----

        h. He was, on or about 5 November 1998, disorderly

        i. He was, on or about 18 January 1999, disorderly

Since applicant had less than 20 months of total  active  military  service,
he did not  receive  an  Enlisted  Performance  Report.   His  DD  Form  214
indicates he is entitled to wear the  Air  Force  Training  Ribbon  and  the
Force Protection Basic Occupational Badge.

On 31 March 1999, applicant was discharged in  the  grade  of  airman  (E-2)
under the provisions of AFI 36-3208, Chapter 4, Discharge in Lieu of  Court-
martial, with a service  characterization  of  Under  Other  Than  Honorable
Conditions (UOTHC).  He served a total of  7  months,  and  24 days  of  net
active service, with 85 days of  lost  time  (28 December  1998  –  23 March
1999).

On 22 October 2004, the applicant personally appeared before the  AFDRB  via
video teleconference from Travis AFB, CA, with  Andrews  AFB,  MD.   He  was
appealing that his discharge be  upgraded  from  UOTHC  to  Honorable.   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  afforded
full administrative due process.  They found that neither  the  evidence  of
record nor that provided by  the  applicant  substantiated  an  inequity  or
impropriety that  would  justify  a  change  for  the  basis  of  discharge;
however, after careful review  of  the  evidence  in  the  record  and  that
presented by the applicant, they found, by a majority vote, that there  were
certain equitable factors which significantly  mitigated  the  egregiousness
of his offenses and justified the upgrade of his discharge  characterization
from UOTHC to under honorable conditions (general).  They voted to deny  his
request for upgrade of his discharge  to  honorable;  however,  by  majority
vote, they voted to upgrade his discharge characterization to general  under
honorable conditions, and AFPC corrected his DD Form 214 accordingly.

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.  On 17 August 2007, a copy of the FBI  report  was  forwarded  to
the applicant for review and comment within 30 days.   In  response  to  our
request, applicant provided comments which are attached at Exhibit E.

On 17 August 2007, a request for post-service information was  forwarded  to
the applicant for response within 30 days.   In  response  to  our  request,
applicant provided post-service information which is attached at Exhibit E.

At the time of  the  applicant’s  discharge,  the  service  characterization
received was appropriate under the provisions of the  governing  instruction
in effect at the time.  Attached at Exhibit F is an  excerpt  from  AFI  36-
3208, Administrative Separation of Airmen, dated 9 July  2004,  which  shows
the current criteria for determining the characterization of  service  under
similar circumstances.  Additionally, notwithstanding the absence  of  error
or injustice, the Board has the prerogative to grant relief on the basis  of
clemency if so inclined.

________________________________________________________________

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.  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 find no
evidence  of  an  error  or  injustice  that  occurred  in  the  discharge
processing.  The applicant’s contentions are noted; however,  he  has  not
provided evidence to substantiate these contentions.  Further, he provides
no evidence that the actions of his chain of command  in  prosecuting  him
were unreasonable.  Given the seriousness of the charges  brought  against
him and the serious misconduct for  which  he  was  legally  and  mentally
responsible, we believe the actions taken  against  him  were  reasonable.
Based on the available evidence of record, it appears that  the  discharge
was  consistent  with  the  substantive  requirements  of  the   discharge
regulation  and  within  the  commander’s  discretionary  authority.   The
applicant has provided no evidence which would  lead  us  to  believe  the
characterization of the service was contrary  to  the  provisions  of  the
governing regulation, unduly harsh, or disproportionate  to  the  offenses
committed.  By choosing to request discharge in lieu of  trial  by  court-
martial, where the government would have to prove, in a court of  law  and
beyond a reasonable doubt, the Charges brought against him, it appears  he
was aware of the possibility of receiving a less than honorable  discharge
characterization, and he has not provided evidence of any  impropriety  in
the manner in which the discharge was  conducted,  and  available  records
indicate he was  afforded  all  rights  to  which  he  was  entitled.   We
considered upgrading the discharge based on clemency; however, we  do  not
find the evidence presented  is  sufficient  to  compel  us  to  recommend
granting the relief sought on that basis.  Therefore, in  the  absence  of
evidence to the contrary,  we  find  no  basis  upon  which  to  recommend
granting the relief sought.

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 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-2007-02056
in Executive Session on 10 October 2007, under the  provisions  of  AFI  36-
2603:

                       Mr. James W. Russell, III, Panel Chair
                       Ms. Janet I. Hassan, Member
                       Mr. Clarence R. Anderegg, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Jun 07, w/atchs.
    Exhibit B.  AFDRB Hearing Record, dated 22 Oct 04.
    Exhibit C.  USDOJ FBI Report, dated 25 Jul 07.
    Exhibit D.  Letter, AFBCMR, dated 17 Aug 07.
    Exhibit E.  Letter, Applicant, dated 5 Sep 07, w/atchs.
    Exhibit F.  AFI 36-3208 Extracts, dated 9 Jul 04.




                                   JAMES W. RUSSELL, III
                                   Panel Chair