SECOND ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2009-01011

		COUNSEL:  NO
		
		HEARING DESIRED:  NOT INDICATED


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APPLICANT REQUESTS THAT:

1.  He be reinstated into the Air National Guard (ANG) or as a member of the Air Force Reserve and his records be corrected to reflect he had no break in service.  

2.  He be granted financial compensation during the period of his erroneous discharge until reinstatement is approved.  

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RESUME OF CASE:

On 30 Jun 10, the Board considered the applicant’s original request that his discharge from the Tennessee Air National Guard (TNANG) be set aside and he be reinstated.  In the original case, the applicant contended he unknowingly ingested an illegal substance which resulted in a positive urinalysis finding leading to his subsequent discharge.  The Board found the applicant had cast some doubt on the official finding that he purposefully ingested an illegal substance and recommended his records be corrected to reflect that he was eligible to reenlist.  For an accounting of the facts and circumstances surrounding the applicant’s original request and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit B.  

On 2 Mar 12, by virtue of a DD Form 149, the applicant requested his records be corrected to reflect his discharge never occurred.  Although the Board previously granted him relief and corrected his reenlistment eligibility factor to reflect he was eligible to reenlist, such action did not constitute full and fitting relief.  Specifically, the applicant’s NGB Form 22, National Guard Bureau Report of Separation and Record of Service, still reflected that he was furnished a General (under honorable conditions) discharge for misconduct along with a corresponding separation program designator (SPD) code that rendered him ineligible to reenlist despite the aforementioned correction.  As such, on 7 Feb 13, the Board recommended the applicant’s record be corrected to reflect he was honorably discharged, with an authority and reason for separation of “Secretarial Authority” and a separation program designator (SPD) code of “KFF” instead of “GNF.”  While the Board determined that additional relief was warranted, they remained unconvinced the applicant’s record should be corrected to reflect he was reinstated into the Air National Guard (ANG) as the Board lacked authority to do so.  For an accounting of the facts and circumstances surrounding the applicant’s reconsideration and the rationale of the earlier decision by the Board, see the Record of Proceedings (ROP) at Exhibit D.  

On 30 May 13, the applicant submitted a statement requesting reconsideration of his case, contending that since the Board found he should be eligible for reenlistment instead of reinstatement, he is being processed through the Military Entrance Processing Station (MEPS) as an 18 year old recruit.  However, due to previous injuries sustained on active duty he would need multiple waivers to be eligible for reenlistment.  His injuries would not be an issue or require waivers if there were no break in service and the only way to remedy this problem is to be reinstated.  In addition to his lost time, he incurred a financial loss during this period as he was deprived of the income associated with his part-time service in the Air National Guard (ANG).  He lost monthly, yearly, and other supplemental income, and was prevented from applying for other local and federal law enforcement jobs due to his adverse discharge.  Since the Defense Finance and Accounting Service (DFAS) was not directed to provide financial compensation for his lost time, and was only told to “review and determine” if he was entitled to any monetary benefits, he will probably not receive any compensation.  

The applicant’s complete submission is at Exhibit E.

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THE BOARD CONCLUDES THAT:

After again reviewing the applicant’s request and the totality of the evidence provided, we are not convinced that the evidence presented by the applicant is sufficient to conclude that additional relief is appropriate.  While it is true that in the original iteration of this case, the relief recommended by the Board did not result in the applicant being eligible to re-enlist, which required the applicant to bring his case before this Board again for additional consideration and further relief, we are not convinced that additional relief is warranted.  While the applicant contends that because of the lengthy consideration of his case, he is now unable to meet Air National Guard (ANG) physical accession standards, we are not convinced the applicant has exhausted his available administrative remedies.  In this respect, we note that he has provided no documentary evidence whatsoever of his efforts to re-affiliate with the service or that his purported medical conditions have caused him to be rejected for future service.  Therefore, because our governing directive, AFI 36-2603, Air Force Board for Correction of Military Records, requires this Board to deny an application when the applicant has failed to exhaust his administrative remedies, there is no basis for us to recommend granting the relief sought in this application.  Irrespective of this finding, even if we were to assume for the sake of argument that the applicant, for whatever reason, is now unable to meet accession standards, we are still not convinced that corrective action, particularly something as extreme as reinstatement, would be warranted in this case based on the totality of the evidence provided.  While it is true that this Board originally determined that the applicant’s record should be corrected to reflect that he was eligible to pursue re-enlistment, this finding did not constitute a determination by this Board that the applicant’s original discharge was illegitimate or should not have taken place.  Instead, this Board believed the applicant had raised sufficient doubt that he had purposefully ingested a controlled substance and, by resolving doubt in his favor in the interest of justice, determined that it was appropriate to correct the record only to extent required to allow him to attempt to reaffiliate, provided he was otherwise qualified.  Such a finding is not predicated on a determination that there was an error on the part of the Air Force.  Therefore, after a thorough review of the totality of the evidence presented in this case, it is our view that the relief rendered upon the applicant is full and fitting.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material 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.

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The following members of the Board considered the applicant’s request for reconsideration of AFBCMR Docket BC-2009-01011 in Executive Session on 29 May 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member



The following documentary evidence pertaining to AFBCMR Docket Number BC-2009-01011 was considered:

     	Exhibit D.  Addendum ROP, dated 4 Mar 13, with atchs. 
	Exhibit E.  Letter, Applicant, dated 30 May 13.




                                   
		Panel Chair