RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2006-02378
            INDEX CODE:  110.02

            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    The Article 15 punishment imposed  on  7  Feb  91,  and  all  negative
actions subsequent to the Article 15 be removed from his record.

2.    All information referencing the indefinite disqualification  to  carry
a firearm or weapons disqualification be expunged from his records.

3.    His Air Force Specialty Code (AFSC) 81152 be reinstated.

4.    The AF Form  590’s,  Withdrawal/Reinstatement  of  Authority  to  Bear
Firearms, dated 23 Jan 91, 7 Mar 91, and 21 Mar  91,  be  removed  from  his
records.

5.    The AF Form 910, Enlisted Performance Report  (EPR)  (AB  thru  TSgt),
for the period 8 Apr 90 to 7 Apr 91 (Referral Report) be  removed  from  his
records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In 1991, he received an Article  15  for  an  alleged  incident  of  weapons
mishandling.  The allegation was  false,  though  under  legal  counsel,  he
accepted the Article 15 instead of a court-martial  hearing.   The  incident
was one person’s word against his own, and “the  burden  of  disproving  the
allegation” was left to him.

He underwent a mental health evaluation at  the  Life  Skills  Center.   The
doctor determined he was fit for duty,  but  there  was  a  “potential”  for
unreliability  as  it  related  to  Presidential  Support   Duties   and   a
reevaluation should be accomplished in one year.

Following the Article  15  action  he  had  a  heated  discussion  with  his
commander that border lined but did not breach  insubordination.   Following
the  confrontation,  he  was  ordered  to  undergo  another  mental   health
evaluation against the recommendation in the first evaluation.

He was placed in a position of performing labor tasks  and  was  ordered  by
his command staff to report to the Life Skills Center for  weekly  sessions.
This continued for months until he was informed by  a  senior  NCO  that  he
could not be ordered to attend weekly  counseling  and  that  he  was  being
placed in a position to be self destructive  of  his  military  career.   He
discontinued the sessions and shortly thereafter, he  was  informed  of  his
impending  discharge  based  on  retainability  for  retraining.   His  unit
commander would not allow him to cross train  to  another  career  field  or
reenlist.  He was not informed of any change in his AFSC or  other  negative
information.  He received an honorable discharge on    23 Oct 91.

The reasons why the negative and/or misinformation should be removed are  as
stated:

1.   The  person  making  the  false  accusation  wrote  him  a  letter   of
recommendation stating that he “considered him a very  reliable  person  and
would gladly serve  alongside  him,  and  that  he  should  be  returned  to
security police duties immediately.”

2.    The letter of recommendation from the  Security  Police  Distinguished
Visitor Liaison NCO that stated he “would  not  hesitate  to  place  him  in
close proximity to the President, Vice President,  and  other  distinguished
dignitaries.”

3.  He was not aware of  the  permanent  weapons  disqualification,  he  was
temporarily disqualified  after  the  weapons  mishandling  allegation.   He
underwent a weapons safety course and was re-armed. He was not aware of  any
further disqualification.

4.  He had no knowledge of his AFSC being stripped.  After he  was  informed
of his impending discharge; he was taken by surprise and signed anything  he
believed was required to process his discharge.

His character as a member of the Air Force  has  come  into  question  as  a
result of entries in his record that he was unaware of, unable  to  explain,
and/or information that is incorrectly entered  such  as  his  earned  skill
level.

In support of his request, applicant provided copies  of  several  documents
from his military record to include mental health records,  two  letters  of
recommendation, a Community College of the Air  Force  transcript,  DD  Form
214, Certificate of Release or Discharge  from  Active  Duty,  two  AF  Form
2096s, Classification/On-The-Job Training Action,  AF  Form  590s,  AF  Form
910, and Airman Performance Feedback Worksheets.

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

_________________________________________________________________


STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on  8  Aug  88.   He  was
assigned as a law enforcement patrolman.  On  29  Jan  91,  he  was  offered
nonjudicial punishment under Article 15, Uniform Code  of  Military  Justice
(UCMJ), for willful dereliction of duty by failing to follow proper  weapons
safety procedures on or about  19 Jan 91, in violation of Article 92,  UCMJ.
 Specifically, he was accused of purposely  drawing  his  9mm  pistol  while
performing entry control duty at  the  gate,  and  waiving  the  pistol  and
pointing  it  at  the  gate  shack.   He  was  also  accused  of  simulating
chambering a round in his M-16 rifle by dropping the  magazine  and  sliding
the bolt forward.  On 5 Feb 91, after consulting with his  defense  counsel,
the applicant voluntarily  waived  his  right  to  demand  trial  by  court-
martial, and accepted nonjudicial punishment proceedings.   He  requested  a
personal presentation before the imposing commander  and  also  submitted  a
written presentation for the  commander’s  consideration.   In  his  written
statement he denied committing the alleged misconduct.

After considering the evidence as well  as  the  applicant’s  response,  the
commander found applicant guilty of  the  offense  alleged.   Applicant  was
reprimanded and reduced in rank from airman  first  class  to  airman.   The
applicant  appealed  the  action  first  to  the  imposing  commander,   and
subsequently  to  the  appeal  authority.   Although   the   applicant   had
previously denied the veracity of the allegation and stated that  he  should
not be punished on the word of one witness alone,  in  his  appeal  response
the  applicant  stated  that  he  thought  the  offense   alleged   was   “a
misperception” and a “misunderstanding by a fellow airman.”  The Article  15
action became final and legally sufficient on 8 Apr 91.

Additional relevant facts pertaining to this application  are  contained  in
the letters prepared by the appropriate office of the Air Force.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM  recommends  the  applicant’s  request  be  denied.    AFLOA/JAJM
states, in part, the application was not timely filed and may be  denied  on
that basis alone.  The application is dated more than  fifteen  years  after
the Article 15 action.  The applicant does not provide a  compelling  reason
why this petition was not filed within three years  from  the  date  of  the
alleged injustice.  He simply states that he “was  unaware  of  the  weapons
disqualification  action  until  today.   It  is   affecting   his   current
employment.”  Aside from the fact that the documentation  contained  in  the
applicant’s records appears to  contradict  the  applicant’s  statement,  he
does not provide any reason explaining the untimeliness of  his  application
with regard to the Article 15 action.

The applicant provides absolutely no evidence of error or  injustice  during
the Article 15  process.   As  a  member  accepting  nonjudicial  punishment
proceedings, the applicant  had  the  right  to  have  a  hearing  with  the
commander, to have a spokesman at the hearing,  to  request  that  witnesses
appear and testify, and to present evidence.  The applicant availed  himself
of all his rights.  After his commander found  by  a  preponderance  of  the
evidence that he committed the offense alleged, he had the right to  contest
the determination or the severity of the  punishment  by  appealing  to  the
next higher commander.  With the advice of counsel  the  applicant  appealed
the action at two separate levels.  After considering all  the  evidence  as
well as  the  applicant’s  presentations,  the  appeals  were  denied.   The
applicant presents no evidence that he was denied due process  or  that  the
proceedings were unfair.  There is  no  evidence  in  the  record  that  the
commander abused his discretion.

The AFLOA/JAJM complete evaluation, with attachments is at Exhibit C.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

A complete copy of the Air Force evaluation was forwarded to  the  applicant
on 22 Dec 06 for review and response within 30 days.

On 3 Jan 07, applicant requested his case be temporarily withdrawn.   On  10
Jan 07, applicant’s case was administratively closed until  he  requests  in
writing to proceed with the processing of his case.

On 10 May 07, applicant submitted his rebuttal to the Air  Force  evaluation
and requested additional corrections be made to his record as follows:

      1.  The AF Form 2096, dated 25 Jan 90,  indicates  he  was  awarded  a
Primary AFSC (PAFSC) of 81152, which was approved by the commander.

      2.  AF Form 2096, dated 22 Aug 91, indicating a change  in  AFSC  from
81152 to 99005.  This action was “disapproved”  by  the  MSSq  Headquarters.
His signature is required IAW AFI 36-2101.  AFSC 81152  was  earned  and  is
not indicated on multiple documents in his military records to  include  his
DD Form 214.  The training action to change his  AFSC  was  disapproved  and
therefore his AFSC should remain 81152 and be documented as such.

      3.  The AF Form 590, dated 23 Jan 91, to withdrawal authority to  bear
firearms “indefinitely” was withdrawn on 7 Mar  91.   On    7  Mar  91,  the
authority to bear firearms was reinstated.

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

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

HQ AFPC/DPPPEP recommends denial of the applicant’s request to  have  his  7
Apr 91 EPR expunged from his record, due to timeliness and lack of  support.
 However, they recommend that the rank on the EPR and all attached  referral
documents be corrected to reflect Amn instead of A1C.

The application was not submitted in a timely  manner  and  he  provides  no
reason for the untimeliness.

The applicant contends that the individual who wrote the EPR  had  not  been
his assigned supervisor for the previous seven months.  The Air  Force  does
not require the designated  rater  to  be  the  immediate  supervisor.   The
applicant provided no evidence  to  substantiate  that  the  individual  who
wrote the report was not in fact his assigned rater.

The applicant  contends  that  the  Airman  Performance  Feedback  Worksheet
indicated that he needed little or no improvement.  The  applicant  received
an Article 15 for weapons safety  issues.   These  are  serious  infractions
that very well could, and should disagree with the previous  feedback.   The
failure to include it in the feedback provides no valid  basis  for  voiding
the report.

The applicant contends that  the  information  contained  in  the  contested
report is  not  consistent  with  the  overall  evaluation  period  and  was
unjustly reported in order to further justify an agenda for  discharge.   To
appeal, the applicant must  provide  statements  from  the  evaluators  that
provide specific information about the incident and  why  they  now  believe
the incident or incidents were over emphasized.

The applicant contends that his AFSC is incorrect; however he  is  referring
to his PAFSC, which is awarded upon successful completion  of  the  required
upgrade training requirements.  The  AFSC  on  the  EPR  is  the  Duty  AFSC
(DAFSC),  which  is  the  duty  position  the  individual  held  during  the
reporting period.  Although the applicant  was  awarded  the  5-skill  level
(PAFSC), it does not mean he  was  assigned  to  a  5-skill  level  position
(DAFSC).  In fact, for his grade at the time, it is very likely that he  was
filling a 3-skill level (DAFSC) position.  To correct this  information  the
applicant would have to provide a copy of the manning document showing  that
he in fact filled a 5-skill level (DAFSC) position.

The applicant contends that his rank is incorrect on  his  EPR.   The  close
out of the report was 7 Apr 91 and his date of rank to  E-2,  Airman  was  7
Feb 91.  The applicant is correct;  the  rank  on  the  EPR  should  reflect
Airman instead of A1C, E-3.

Although the applicant does not refer to the EPR specifically,  he  requests
all references to the Article 15 and  weapons  disqualification  be  removed
from his record.  Unfortunately, in regards to the EPR, the applicant  would
first have to have the derogatory information set  aside,  as  if  it  never
existed, before removing it from the EPR.  As of right  now  the  report  is
accurate as written, because the incident did take place.  Once a report  is
accepted for file, only strong evidence to the contrary warrants removal  or
a change in the ratings.  The burden of proof is on the applicant.

The complete DPPPEP evaluation is at Exhibit H.

HQ  AFPC/DPPRS  recommends  denial  of  the  applicant’s  request  that  all
information referring to disqualification and loss of his  AFSC  be  removed
from his discharge package.

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.   Additionally,  applicant  did  not  submit  any
evidence  or  identify  any  errors  or  injustices  that  occurred  in  the
discharge processing.  He provided no facts warranting the  removal  of  the
information concerning his disqualification and loss of his AFSC.

The complete DPPRS evaluation is at Exhibit I.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Being  that  he  was  separated  from  the  service  in  October  1991,  all
correspondence dealing with withdrawal and/or reinstatement  in  the  unit’s
personnel information file should have been removed  upon  separation.   The
writer failed to acknowledge that the 180-day limit had been  exceeded,  the
separation had taken place and that there was  no  permanent  withdrawal  as
the Air Force failed to meet the criteria per AFI 31-207.

The advisory writer refers  to  the  raters’  position  as  an  individual’s
supervisor.  At the time of the  EPR  neither  rater  referred  to  was  the
immediate supervisor.  Prior to the weapons removal  Sgt  T.  had  been  his
supervisor, Sgt B. had no contact with him and therefore was not capable  of
making a fair assessment of his previous year’s performance.

Regarding the feedback sheet and it’s correlation to the  EPR  in  question.
While a weapons infraction is serious in nature,  it  is  not  the  complete
picture of the reporting period.

To get  statements  from  individuals  from  16  years  ago  would  be  near
impossible.

The rating chain was not used to  provide  an  accurate  EPR  for  the  time
period rated.  The EPR was unjustly reported in order to further justify  an
agenda for discharge.

The statement by the advisory writer pertaining to his discharge  about  him
failing to provide a command directed urinalysis drug test as  directed  was
not in his records.  The  urinalysis  was  completed  and  he  provided  the
documentation to prove it.

The request is not questioning the discharge, but the information  that  was
used in completing  the  discharge.   There  are  several  errors  that  are
identified and the Air  Force  has  acknowledged  and  corrected  the  error
regarding the loss of his AFSC.

If the Board does not find sufficient reasoning to expunge the documents  as
requested, an alternate sufficient resolution to the request would be:

To have Block 7 the “Through date” on the document  changed  from  the  date
“Indefinite” to “1991 Sept 21.”  This date would reflect the maximum  period
of time allowed by AFI without a review  and  extension  of  the  withdrawal
action.  There is no documentation in his records to support  the  continued
withdrawal action pass the 180-day limit.  No extension  was  filed  and  he
was not under investigation or under any  medical  treatment  that  was  not
voluntary and/or outpatient.

The applicant’s complete responses, with attachments, are at Exhibits K  and
L.

_________________________________________________________________

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  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.   We
note that AFPC/DPPPEP indicates the rank on his Enlisted Performance  Report
and corresponding referral documents is an error and should  reflect  Airman
instead  of  Airman  First  Class;  these  items  will  be  administratively
corrected.  Otherwise, we are not persuaded by applicant’s assertion of  the
existence of an error in this case and  after  reviewing  the  documentation
submitted in support of  applicant’s  appeal,  we  do  not  believe  he  has
suffered from an injustice.  Therefore, in the absence of  evidence  to  the
contrary, we find no compelling basis to recommend  granting  the  remaining
items 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-2006-
02378 in Executive Session on 20 Dec 07, under the  provisions  of  AFI  36-
2603:

      Ms. Kathleen F. Graham, Panel Chair
      Mr. Wallace F. Beard Jr., Member
      Ms. Karen A. Holloman, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2006-
02378 was considered:

    Exhibit A.  DD Form 149, dated 2 Aug 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLOA/JAJM, dated 14 Dec 06.
    Exhibit D.  Letter, SAF/MRBR, dated 22 Dec 06.
    Exhibit E.  Letter, Applicant, dated 3 Jan 07.
    Exhibit F.  Letter, AFBCMR, dated 10 Jan 07.
    Exhibit G.  Letter, Applicant, dated 10 May 07, w/atchs.
    Exhibit H.  Memorandum, AFPC/DPPPEP, dated 3 Aug 07.
    Exhibit I.  Memorandum, AFPC/DPPRS, dated 3 Aug 07.
    Exhibit J.  Letter, SAF/MRBR, dated 10 Aug 07.
    Exhibit K.  Letter, Applicant, dated 13 Aug 07.
    Exhibit L.  Letter, Applicant, dated 13 Aug 07, w/atchs.




                                             KATHLEEN F. GRAHAM
                                             Panel Chair