RECORD OF PROCEEDINGS

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: DOCKET NUMBER: BC-2005-01773

XXXXXXX COUNSEL: XXXXXXXXX

HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His Under Other Than Honorable Conditions (UOTHC) discharge be upgraded and he be reinstated to active duty with full pay and allowances from the date of discharge.

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APPLICANT CONTENDS THAT:

The punishment was excessive and based on errors in instructions, policies, conclusions, descriptions and explanations. The accuser’s claim of sexual harassment was not sufficiently supported by evidence. The administrative process was unfair and corrupt and the discharge was excessive in that the offense does not rise to a major level, rendering the discharge improper.

In support of his request, the applicant provides a supplemental brief from counsel accompanied by copies of an excerpt from AFI 36-3208, Administrative Separation of Airmen, a 5 Feb 96 Area Defense Counsel memorandum to the discharge authority (unsigned), a 26 Aug 96 Letter of Intent to the Discharge Review Board, and a 30 Dec 08 affidavit from counsel.

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

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STATEMENT OF FACTS:

Applicant’s military records indicate he enlisted in the Regular Air Force as an airman basic (E-1) on 13 Aug 82 for a period of four years eventually serving as an Information Management Technical Training Instructor at Keesler AFB, MS.

On 17 Oct 95, the applicant was notified by his commander of his intent to recommend his involuntary discharge from the Air Force for exhibiting a pattern of misconduct, in accordance with AFI 36-3208, Administrative Separation of Airmen.

The reasons for the action are as follows:

a. He did, on 29 Jun 93, receive a letter of reprimand with an Unfavorable Information File and deferral of promotion to technical sergeant (E-6) for unbecoming behavior as a noncommissioned officer (NCO) by making sexual harassing remarks to a student in violation of Equal Opportunity and Treatment policy on or about 4 Apr 94 and 15 Apr 94.

b. He did, on 10 Nov 94, receive nonjudicial punishment via Article 15, Uniform Code of Military Justice (UCMJ), for sexual harassing remarks on or about 8 Sep 93, 28 Sep 93, 4 Apr 94 and 21 Apr 94. Additionally, he violated Article 112a by wrongfully possessing a controlled substance (Tylenol #3) on or about 4 Apr 94 and 21 Apr 94. Further, he violated Article 92, UCMJ, by failing to maintain an environment free from hostility and sexual harassment by asking sexually oriented questions to technical training students between on or about 15 May 95 and 22 Jun 95. For these offenses, he was demoted to the grade of staff sergeant (E-5).

c. He did, on 6 Jul 95, receive a letter of reprimand for violating Articles 86 and 92, in that he failed to return to his appointed place of duty.

d. He did, on 27 Sep 95, receive nonjudicial punishment via Article 15, UCMJ, for violating Article 92, UCMJ, in that he abused his position as an NCO by repeatedly making improper comments of a sexual nature to a peer in his work center on or about 15 May 95 and 22 Jun 95.

On 10 Jan 95, the applicant offered a conditional waiver of administrative discharge proceedings for a general discharge which the discharge authority rejected.

On 16 Jan 96, the applicant offered an unconditional waiver of administrative discharge proceedings. On 2 Feb 96 the case was found legally sufficient and the discharge authority accepted the applicant’s waiver that day, directing his discharge with an UOTHC discharge.

On 12 Feb 96, the applicant was discharged as directed. He was credited with 13 years and 6 months of active service.

On 19 Sep 96, the Air Force Discharge Review Board (AFDRB) considered and denied the applicant’s request for an upgrade of his UOTHC discharge to honorable.

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AIR FORCE EVALUATION:

AFPPC/DPSOS recommends denial, indicating the discharge, to include the characterization of service, was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The applicant did not submit any evidence or identify any errors or injustices in the discharge processing that would serve to substantiate his contentions.

A complete copy of the AFPC/DPSOS evaluation is at Exhibit C.

AFLOA/JAJM recommends denial, indicating the applicant has not demonstrated any error or injustice with regard to the Article 15 actions or the administrative discharge. Most of the offenses which formed the pattern of misconduct that was the basis for that discharge were the subject of two Article 15 nonjudicial punishment actions. A review of both actions shows the applicant was given all of the rights to which he was entitled. In both cases, he was given the opportunity to consult with counsel, demand or waive his right to a court-martial, present information for the commander’s consideration and appeal his ultimate decision. Finally, both actions were reviewed and found legally sufficient before they were imposed.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluations were forwarded to applicant on 7 Aug 09 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E).

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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 an error or injustice warranting a change to the applicant’s characterization of service. 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. Other than his own assertions, the applicant has provided no evidence which would lead us to believe that the information contained in the discharge case file is erroneous, that he was not afforded all the rights to which he was entitled, or that his commanders abused their discretionary authority. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2005-01773 in Executive Session on 23 Sep 09, under the provisions of AFI 36-2603:

Mr. Anthony P. Reardon, Panel Chair

Ms. Janet I. Hassan, Member

Mr. Mark J. Novitski, Member

The following documentary evidence was considered:

Exhibit A. DD Form 149, dated 23 Dec 08, w/atch.

Exhibit B. Applicant's Master Personnel Records.

Exhibit C. Letter, AFPC/DPSOS, 23 Jun 09.

Exhibit D. Letter, AFLOA/JAJM, dated 17 Jul 09.

Exhibit E. Letter, SAF/MRBR, dated 7 Aug 09.

ANTHONY P. REARDON

Panel Chair