RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2002-02889

	 	COUNSEL:  XXXX XXXX
	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.	His discharge be upgraded to honorable.

2.	The narrative reason for his discharge be changed to miscellaneous reason, AFI-36-3208, paragraph 3.15.

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THE APPLICANT CONTENDS THAT:

There was insufficient evidence to warrant the applicant’s discharge under AFI 36-3208, paragraph 5.32, for failure in an alcohol abuse treatment program.

The applicant’s counsel states the only evidence of the applicant’s failure was his arrest on 4 September 1997 on the charge of pedestrian under the influence.  The charge was nolle prossed because on the day of trial the arresting officer did not show and the prosecution had no evidence.  His arrest for an alcohol related charge was not properly used as a basis for his discharge.  Neither his arrest nor the underlying conduct should have been considered on service characterization when the charge was nolle prossed (formal entry by prosecutor that he/she will not further prosecute the case) in accordance with paragraphs 1.21 and 1.21.1 of AFI 36-3208.  Furthermore, the Air Force Discharge Review Board (AFDRB) erred in concluding the applicant had failed to show harmful procedural error in the processing of his discharge.  The AFDRB evaded the plain meaning of the discharge notification memorandum and sought some independent basis to conclude that the applicant should have been discharged.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6 March 1996 for a period of four years.  He was promoted to the grade of airman on 6 September 1996.

An Incident Report, prepared on 8 April 1997, indicates that on that date at 0420 hours, the applicant was apprehended by the Lowndes County Sheriff’s office and charged with being a pedestrian under the influence.  He was placed in Track 5 (Program Failure - Member is being processed for discharge) of the Substance Abuse Rehabilitation Training (SART) program based on his failure to maintain Air Force standards while in the SART program.

After reporting to duty late due to intoxication on 22 April 1997, with a blood alcohol count (BAC) of .147%, he was referred to the 347th Medical Group at Moody AFB, Georgia, on 25 April 1997, and entered into Track 4 (Treatment) under the Substance Abuse Reorientation and Treatment (SART) program.  He underwent a diagnostic interview and his condition was diagnosed as alcohol dependence.  He received in-patient treatment at Eisenhower Army Medical Center from 3 May through 3 June 1997.

On 25 April 1997, the commander notified the applicant of his intent to impose nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 134.  Specifically, for being incapacitated for the proper performance of his duties, on or about 22 April 1997.  After consulting legal counsel, the applicant waived his right to a trial by court-martial and accepted the nonjudicial punishment.  After considering the applicant’s oral and written submissions, on 5 May 1997, the commander determined that he did commit the alleged offense and imposed nonjudicial punishment consisting of a suspended reduction to the grade of airman basic and forfeiture of $150.00 pay per month for two months.  The applicant did not appeal the punishment.

On 1 October 1997, the applicant informed the Mental Health Office that he did not want to continue their aftercare.

In a letter, dated 7 October 1997, the commander notified the applicant of his intent to initiate administrative discharge action against him for failure in the SART program.  The commander indicated his reasons for the action were as follows:

On or about 25 April 1997, he was diagnosed as having alcohol dependence.  He was provided in-patient treatment from 6 May 1997 to 3 June 1997 with follow-on care at Moody’s Mental Health Clinic.  On 4 September 1997, he was charged with public intoxication by the Sheriff’s Office.  This incident led to a meeting of the Treatment Committee on 11 September 1997 to review his progress in the SART program.  The Mental Health Clinic recommended that he be placed into SART Track 5, program failure, which occurred on 15 September 1997.

The applicant acknowledged receipt of the discharge notification letter.  After reviewing the applicant’s written submission and character references submitted in his behalf, on 20 October 1997, the discharge authority approved the recommended discharge without probation and rehabilitation.  The execution of the discharge was held in abeyance until a physical examination could be completed on the applicant, showing him medically qualified for worldwide duty.

He was discharged on 21 October 1997, under the provisions of AFI 36-3208 (Alcohol Rehabilitation Failure), with service characterized as under honorable conditions (general).  He completed 1 year, 7 months, and 16 days of active service.

On 13 February 2001, the Air Force Discharge Review Board (AFDRB) considered and denied applicant’s request that his discharge be upgraded.

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AIR FORCE EVALUATIONS:

AFPC/DPPRS recommends the application be denied and states, in part, that the discharge was consistent with procedural and substantive requirements of the discharge regulation.  In addition, the discharge was within the discretion of the discharge authority.  The applicant has not submitted any new evidence or identified any errors or injustices that occurred in the discharge processing.

The AFPC/DPPRS evaluation is at Exhibit C.

AFPC/JA states, in part, that the applicant has failed to present relevant evidence of any error or injustice warranting relief.  The applicant’s arrest on 4 September 1997, by civilian authorities on an alcohol-related charge, was an appropriate basis for the determination that he had failed the SART program and was therefore subject to discharge.  As such, the contention that there was insufficient evidence to support the discharge is rejected.  The applicant’s counsel argues that the nolle prossed charge should be considered an action having the effect of an acquittal; however, it does not indicate an absence of the commission of a criminal act or forever clear one of the charges brought against him.  The state prosecutor elected not to prosecute the charge against him, but it may spring into life again and be continued again with all of the fervor and energy at the command of the prosecutor.  Contrary to counsel’s argument, it should not be considered an action having the effect of an acquittal.

Counsel also argues the AFDRB’s conclusion that the applicant’s failure to comply with the treatment schedule following return from in-patient rehabilitation for his diagnosed alcohol dependence, in and of itself, was sufficient reason to conclude failure, went far beyond the matters in the commander’s notification memorandum.  However, after reviewing the commander’s notification memorandum and the memorandum of the Chief, Mental Health Office, AFPC/JA finds no basis for this argument since references to his failure to comply with his treatment regimen are contained in both memorandums.  In addition, AFPC/JA disagrees with counsel’s claim that the AFDRB impermissibly based its decision in part on the applicant’s exercise of his 5th Amendment and Article 31 rights against self-incrimination.  Although AFPC/JA is not convinced that 5th Amendment and Article 31 rights applied to the applicant at the AFDRB hearing, they acknowledge that, under Board procedures, he did not have to answer Board member questions if he did not want to.  AFDRB procedures make clear the non-adversarial nature of the hearing.  AFPC/JA disagrees with the applicant’s claim that the AFDRB based its decision upon his refusal to answer questions.  The applicant has consistently argued that his 4 September 1997 civilian arrest on an alcohol-related charge was improperly used as a basis for his discharge because the charge was subsequently nolle prossed.  It was appropriate for the AFDRB to inquire into the underlying misconduct that was the basis for the civilian arrest.  The AFDRB noted that the applicant declined to answer questions in testimony regarding his activities on 4 September 1997.  The AFDRB turned to his records for this information and noted, correctly, that at the time the discharge action was pending, he did not deny that he had committed the act.  In AFPC/JA’s opinion, the AFDRB acted appropriately in so finding.

The AFPC/JA evaluation is at Exhibit G.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant’s counsel reviewed the evaluations and states, in part, that while the applicant had done some things to get himself into the SART program, on the basis of the matters set forth in the notification letter, there is insufficient evidence to show that he was a program failure.  The mere fact the applicant was arrested does not constitute evidence of misconduct, particularly where the charge was nolle prossed or dismissed on the day of trial because the prosecution had no evidence.  As noted in the legal review, under AFI 36-2701, paragraph 5.26.1, drinking, by itself, is not grounds for SART program failure.  Nor does the mere arrest show a basis for failure as such arrest does not show unlawful behavior.  Furthermore, the State of Georgia made no effort to revive the charge that is now clearly barred by the statute of limitations.  Although the arresting officer did not show for trial, the defense was ready to proceed.  Even if the officer had appeared, it would have been impossible for the state to prove the charge of public drunk since he was found asleep in his car and apparently no tests were performed to determine if he was impaired in any way.  Moreover, the charge of pedestrian under the influence would obviously have to fall since he was not a pedestrian.  While the commander may possibly have made an administrative determination that the applicant was intoxicated, in this case the commander appears not to have done so as there was nothing in the record or discharge package from which he could have drawn such a conclusion.  Nor is there any record that the commander actually made such an administrative determination.

Counsel’s complete responses are at Exhibits I and K.

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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 error or injustice.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that relief should be granted.  The contentions of the applicant’s counsel are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The comments of the Staff Judge Advocate have adequately addressed the contentions of the applicant’s counsel and we agree with their opinion and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Hence, we find no compelling basis to recommend granting the relief sought.

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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 Docket Number BC-2002-02889 in Executive Session on 21 August 2003, under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 31 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 27 Sep 02.
    Exhibit D.  Letter, SAF/MRBR, dated 4 Oct 02.
    Exhibit E.  Letter, AFBCMR, dated 17 Oct 02.
    Exhibit F.  Letter, Counsel, dated 17 Oct 02.
    Exhibit G.  Letter, AFPC/JA, dated 18 Nov 02.
    Exhibit H.  Letter, SAF/MRBR, dated 22 Nov 02.
    Exhibit I.  Letter, Counsel, dated 17 Dec 02.
    Exhibit J.  Letter, Applicant, dated 6 Jan 03.
    Exhibit K.  Letter, Counsel, dated 6 Jun 03.
    Exhibit L.  Letter, AFBCMR, dated 11 Jun 03.