RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2010-00696
            INDEX CODE:  110.00; 110.02
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

      1.  His general (under honorable conditions) discharge be upgraded  to
honorable.

      2.  Block 20, Reenlistment Eligibility on his NGB  Form  22,  National
Guard Bureau Report of Separation and Record of Service, be changed to  read
“eligible.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

He is a good citizen.  His driving record is clean and he fully  intends  to
continue in this manner.

He was 20 years old and immature during the time of the  incident.   He  was
not aware he would be held responsible for his roommate’s  actions  or  that
he should have contacted the police; however, his ignorance to  the  law  is
no excuse.  He fulfilled his probation and the  offense  has  been  expunged
from his records as if it never happened.

He was discharged before he could appear in Court for  a  verdict.   In  Oct
05, the Court dismissed the charges against  him;  therefore,  he  feels  he
should receive an honorable discharge  from  service  and  his  reenlistment
eligibility should be changed.

In support of his request, the applicant submits  copies  of  his  Order  of
Dismissal and Expungement, his State Bureau  of  Investigation  Record,  the
Air Force Discharge Review Board Hearing Record and Summary,  Special  Order
AA-159 and his DD Form 293, Application for the  Review  of  Discharge  from
the Armed Forces of the United States.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant’s discharge  case  file  was  not  available.   The  following
information was extracted  from  the  Automated  Records  Management  System
(ARMS).

The applicant enlisted in the Air Force  Reserve  on  20  Dec  01.   He  was
assigned duties as a Security Forces Apprentice and  received  an  honorable
character of service upon completion of both  Basic  Military  Training  and
Technical School Training from 29 Apr 02 through 31 Oct 02.

On 20 Oct 03,  the  applicant  was  arrested  for  receipt,  possession  and
concealment of stolen property (felony).  On 20 Sep 04,  he  was  discharged
from the Air National  Guard  for  misconduct  –  civilian  conviction.   He
served 2 years, 9 months and 10 days on active duty.

On 19 Aug 09, the Air Force Discharge Review Board (AFDRB) denied a  similar
request by the applicant.  The AFDRB concluded the discharge was  consistent
with  the  procedural  and  substantive  requirements   of   the   discharge
regulation, was within the discretion of the discharge  authority  and  that
the applicant was provided full administrative due  process.   In  addition,
the AFDRB found no legal or equitable basis for upgrade of  the  applicant’s
discharge.

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

_________________________________________________________________

AIR FORCE EVALUATION:

NGB/A1PS  recommends  denial.    A1PS   concurs   with   the   opinion   and
recommendation of NGB/A1POE.  The A1POE views are as follows:

A1POE states in accordance with ANGI 36-2002,  Enlistment  and  Reenlistment
in the Air National Guard and as a Reserve of the Air Force,  Attachment  1,
the term adverse adjudication states ”…If the adjudicating authority  places
a condition or  restraint  that  leads  to  dismissal,  dropped  charges  or
acquittal,  the  adjudication  is  adverse.”   In  the  order  of  dismissal
provided by the applicant it clearly states he “has  successfully  completed
the terms and conditions of his  probation….”   A1POE  notes  the  applicant
mentions he fulfilled “a period of probation.”   These  factors,  regardless
of dismissal, make this an adverse adjudication which makes  him  ineligible
for reenlistment.

A1POE opines the applicant has not provided any documentation that  supports
an administrative error or injustice occurred during his discharge  process.

The complete A1PS evaluation, with attachment, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on  4  Jun
10, for review and comment within 30 days.  As of  this  date,  this  office
has received no response (Exhibit D).

_________________________________________________________________

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  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 issue  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 this application in  Executive
Session on 17 Nov 10, under the provisions of AFI 36-2603:

      , Panel Chair
      , Member
      , Member

The following documentary evidence was considered in AFBCMR BC-2010-00696

    Exhibit A.  DD Form 149, dated 9 Feb 10, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, NGB/A1PS, dated 15 Apr 10, w/atch.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Jun 10.




                                   Panel Chair