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AF | BCMR | CY2007 | BC-2007-02224
Original file (BC-2007-02224.doc) Auto-classification: Denied

RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-02224
            INDEX CODE:  112.00
            COUNSEL:  NONE
            HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: Jan 19, 2009

_________________________________________________________________

APPLICANT REQUESTS THAT:

His reenlistment eligibility (RE) code of 2C (involuntarily  separated  with
an honorable discharge; or entry level separation  without  characterization
of service) be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The record of his arrest by the Office of Special  Investigations  (OSI)  is
in error and unjust.

His rights were violated  by  being  categorized  as  arrested  by  OSI  for
requesting a lawyer as OSI was conducting an  investigation.   He  was  only
informed that he was being investigated.

The investigation occurred because he followed  an  unlawful  order  by  his
superior officer to hide tools from a major inspection.

He was never arrested or formally charged,  only  finger  printed.   At  the
time, he was told finger prints were only taken for  precautionary  reasons,
in case an absent without leave (AWOL) situation arose.

He was never read his rights.  His rights were violated and continue  to  be
violated by the erroneous record of his arrest.

He has recently “again” been denied employment due to this erroneous  arrest
record, whereby he is being treated as if  he  was  convicted  of  a  felony
which was and has always been untrue.

He is denied employment opportunities anytime companies  conduct  background
checks.

After hearing the facts and circumstances of  the  investigations,  the  Air
Force Discharge Review Board  (AFDRB)  upgraded  his  discharge  from  under
other than honorable conditions to honorable.

The applicant's complete submission is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:

On 23 Apr 98, the applicant was charged with stealing government property.

On 8 Apr  98,  the  acting  staff  judge  advocate  reviewed  the  case  and
determined  it  was  legally  sufficient  and  recommended  the  applicant’s
request for discharge in lieu of trial  by  court-martial  be  accepted  and
that the  applicant  be  discharged  with  an  under  other  than  honorable
conditions discharge.

On 10 Apr 98, the discharge authority approved the applicant’s  request  for
discharge in lieu of court-martial and directed he  be  discharged  with  an
under other than honorable conditions discharge.

The applicant was  discharged  on  20  Apr  98  with  an  under  other  than
honorable conditions discharge.

In 1999, the applicant appealed to the AFDRB and was  denied.   However,  on
12 Dec 06, the AFDRB reheard the case and voted to upgrade  the  applicant’s
discharge to honorable and change his reenlistment code to 2C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPAE recommends denial of the applicant’s request.    As a  result  of
the AFDRB decision, the applicant’s discharge, reason and authority, and  RE
code were changed.  DPPAE states they found no error or injustice,  nor  did
the applicant submit any evidence of any.

The AFPC/DPPAE complete evaluation, with attachments is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 31  Aug
07 for review and comment within 30 days.  As of this date, this office  has
not received a 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.  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 opinion and recommendation of  the  Air  Force  office  of  primary
responsibility and adopt its 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.

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-2007-02224
in Executive Session on 4 October 2007, under  the  provisions  of  AFI  36-
2603:

      Mr. Lawrence M. Groner, Panel Chair
      Ms. Mary C. Puckett, Member
      Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/atch, dated 24 Jun 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFPC/DPPAE, w/atch, dated 7 Aug 07.
    Exhibit D.  Letter, SAF/MRBR, dated 31 Aug 07.




                                   LAWRENCE M. GRONER
                                   Panel Chair




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