RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03009
            INDEX CODE:  110.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His reason for discharge be changed from misconduct to  Expiration  of  Term
of Service (ETS).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was not informed of his official discharge status  until  after  his  ETS
date.  His official ETS date was 25 February 2007.  He was notified  of  his
23 February 2007 discharge well after the fact.  His  MPF  was  notified  on
the 26th of February, the date after his official ETS.

In support of his request, the applicant provided a personal  statement  and
a copy of his DD Form 256 AF, Honorable Discharge Certificate,  and  Reserve
Order A-176.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 23 February 2007, applicant was honorably discharged for misconduct.

The remaining relevant facts pertaining to this application, extracted  from
the applicant’s military personnel records,  are  contained  in  the  letter
prepared by the appropriate office of the Air Force (Exhibit B).

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/JA recommends denial.  AFRC/JA states that on 9 August 2006,  applicant
was attending the Combat Skills  Training  Course  at  Fort  Sill,  OK,  and
refused to provide a urine sample during urinalysis testing.  Several  hours
later, after commander intervention and  counseling,  applicant  provided  a
urine sample, which was negative for the presence of  drugs.   According  to
applicant’s defense counsel, applicant refused to provide  the  same  as  “a
form of protest and to draw attention to his safety concerns.”

On 6 October 2006, via Article 15 (UCMJ),  the  932  AW/CC  found  applicant
violated the UCMJ, Article 90, willfully disobeyed a  superior  commissioned
officer’s lawful order and Article 92, failed to obey an  order,  for  which
applicant was reduced to the grade of staff sergeant.

On 18 January 2007, applicant  signed  the  Acknowledgment  and  Receipt  of
Memorandum of Notification of Initiation (MON) of  separation  action.   The
MON  cited  AFI  32-3609,  paragraph  3.21.3.4,  misconduct,  commission  of
serious offenses,  other  serious  offense,  as  the  basis  for  discharge.
Applicant elected to have an administrative discharge board hear his case.

On 8 February 2007, an administrative discharge board  heard  the  case  and
recommended discharge with an honorable service characterization,  but  that
the discharge be suspended for  purposes  of  probation  and  rehabilitation
(P&R).

On Friday 23 February 2007,  AFRC/CV  approved  the  Board’s  findings,  but
rejected its  recommendation  that  the  discharge  be  suspended.   AFRC/CV
signed  the  discharge  order  directing  involuntarily  discharge  with  an
honorable discharge.

On 25 February 2007, applicant’s ETS expired.

On 26  February  2007,  applicant’s  Military  Personnel  Flight  (MPF)  was
notified of AFRC/CV’s decision.

On 5 October 2007 AFRC/CV denied applicant’s defense  counsel’s  request  to
mollify his discharge based on the lack of actual or constructive notice  of
his specific date of discharge before his ETS on 25 February 2007.

AFI 36-3209,  paragraph  1.5.2,  states,  “Orders  directing  separation  or
discharge become effective at 2400 on  the  date  specified  in  the  member
receives actual or constructive notice  on  or  before  the  effective  date
specified in the orders.  If a member intentionally avoids  receipt  of  the
notice or if the delivery cannot be made  through  normal  postal  channels,
the effective date specified in the orders will  be  considered  to  be  the
date official notification was received.  A member continues to be a  member
until the  discharge  becomes  effective.”   AFI  36-3209  does  not  define
“constructive notice;” however, it is a well-recognized  legal  concept  and
defined in Black’s Law Dictionary.

The facts in this case are undisputed.  The only issue for the  Board  is  a
legal issue:  Whether or not applicant’s knowledge of the discharge  board’s
recommendation and his pending ETS was sufficient notice that the  effective
date of his discharge orders (if  approved)  had  to  be  on  or  before  25
February  2007.   Per  AFI  36-3209,  paragraph  1.5.2.,  “orders  directing
separation or discharge become effective at 2400 on the  date  specified  if
the member receives actual or constructive notice  (emphasis  added)  on  or
before the  effective  date  specified  in  the  orders.”   AFRC/CV’s  order
directed  applicant’s  discharge  on  23  February  2007.   In  this   case,
applicant received constructive notice of this  through  the  administrative
discharge board’s recommendations and his  knowledge  of  his  pending  ETS.
Moreover, in all probability his defense counsel advised applicant  of  this
information.

Applicant’s defense counsel states, “[u]nbeknownst to [applicant] and  [me],
AFRC/CV  as  the  discharge  authority,  signed  an  order   directing   the
involuntary separation of [applicant]…”  This  statement  is  plausible  for
actual notice, but implausible for constructive  notice.   For  constructive
notice, the existence of facts and circumstances that a party had a duty  to
take notice of are sufficient to satisfy due process.  Applicant had a  duty
to take notice of the board’s findings and  recommendations  and  what  they
meant.  The board proceedings are clear  that  the  board’s  recommendations
are just that, recommendations; AFRC/CV is the decision authority.  At  law,
such knowledge is imputed to applicant.  Moreover, applicant’s  counsel  had
a legal duty to know of and apprise applicant of the  ramifications  of  the
board’s findings and recommendations.  First, any competent defense  counsel
would have apprised applicant that it was unlikely that AFRC/CV would  graph
P&R.  Second, a defense counsel would have advised  applicant  that  AFRC/CV
would take action on the discharge prior to his  ETS  because  otherwise  he
would  lose  administrative   authority.    Therefore,   after   the   board
recommended discharge, applicant knew that AFRC/CV would sign the  discharge
orders prior to his ETS, 25 February 2007; AFRC/CV did  so  on  23  February
2007.  Moreover, there is nothing  in  the  case  file,  or  in  applicant’s
application,  suggesting  that  he  did  not  know  that  a  discharge   for
misconduct would have to be done before his 25 February 2007 ETS date.

In addition to the above  facts  and  circumstances  the  applicant  or  his
defense counsel knew or should have known from a substantive and  procedural
due process standpoint, that the rationale for notice of discharge prior  to
ETS  is  for  respondents  and  applicant’s  to  be  able  to  exercise  any
constitutional rights available at that point.  Even assuming arguendo  that
applicant did not have actual or constructive  knowledge  of  his  discharge
for misconduct, his remedy would be the AFBCMR.  Thus,  applicant  would  be
in exactly the same position as he is now.  Accordingly, applicant  has  not
forfeited any due process rights.

Finally, the Board should not accept  applicant’s  factually  deficient  and
technically flawed argument.  To  do  so  would  compromise  the  Air  Force
discharge process and create fundamental  injustice  to  all  those  service
members who did not commit acts of misconduct and were discharged  on  their
ETS with an honorable service characterization.

AFRC/JA’s complete evaluation is at Exhibit B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 4 January 2008, the evaluation was forwarded to the applicant for  review
and comment within 30 days (Exhibit C).  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 timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or an 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 in this case and are not persuaded  by  his  assertions
that he has been the victim of an injustice.  In this  respect,  it  is  our
opinion that the argument  that  he  was  not  officially  informed  of  the
decision to discharge him until after his ETS  is  not  in  and  of  itself,
prevalent over the commander's action taken on 23 February 2007 to  separate
him  on  that  date.   The  governing  instruction  provides  provision  for
"constructive notice" when "actual notice"  does  not  take  place,  and  we
agree with the  office  of  the  judge  advocate  that  application  of  the
constructive notice provision is appropriate in this  case.   Therefore,  we
adopt the rationale expressed as the  basis  for  our  conclusion  that  the
applicant has not been the victim of an error or injustice.  In view of  the
above and absent persuasive evidence to the contrary, we find no  compelling
basis to recommend granting the relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or injustice; the application  was  denied  without  a
personal appearance; and 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 AFBCMR Docket Number  BC-2007-
03009 in Executive  Session  on  31  March  and  15 April  2008,  under  the
provisions of AFI 36-2603:

                 Mr. Wayne R. Gracie, Panel Chair
                 Mr. James G. Neighbors, Member
                 Ms. Janet I. Hassan, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 11 May 2007, w/atchs.
   Exhibit B.  Letter, AFRC/JA, dated 7 December 2007.
   Exhibit C.  Letter, SAF/MRBR, dated 4 January 2008.





                 WAYNE R. GRACIE
                 Panel Chair