RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2007-02056
								INDEX CODE:  110.0, 110.02
								COUNSEL:  YES

								HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  29 December 2008

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APPLICANT REQUESTS THAT:

His Characterization of Service be upgraded to honorable, and his Narrative Reason for Separation be changed to “Completion of Required Active Service” or “Conscientious Objector” (CO).

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APPLICANT CONTENDS THAT:

Security Forces personnel at Edwards AFB, CA, unreasonably discriminated against him throughout his term as a security forces airman due to his Asian heritage and status as a CO, and he was denied fair and equal treatment of the law.

The charges made against him offer indirect evidence of discriminatory conduct in that the charges are unusually severe given the underlying conduct.  Furthermore, they are highly suggestive of fabrication given the fact that they are uncorroborated by any witness, and are made by unreliable individuals.

Because much time has passed since the events complained of in his application, witnesses can no longer be located or are otherwise unavailable to testify.  Because the charges were the primary basis for his initial discharge characterization, the invalidity and erroneous nature of these charges makes his current characterization and narrative reason erroneous.

The charges stemmed from three separate events occurring on 5 November 1998, 28 December 1998, and 18 January 1999.  Each of these events have been grouped with their respective charges, and labeled as (1) “The Authorized Furlough After Conscientious Objector Status,” (2) “The Locker Incident & AWOL,” and (3) “The Voluntary Return from AWOL,” and are further addressed in his Legal Brief at Exhibit A.

In support of his appeal, he has furnished copies of a Legal Brief, signed on 19 June 2007, his license to practice law, dated 20 June 2007, his Resume, undated, and a DD Form 458, Charge Sheet, dated 27 January 1999.

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

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STATEMENT OF FACTS:

SAF/MRBR advises that applicant’s military personnel records cannot be located by the National Personnel Records Center.  They have furnished a copy of his Air Force Discharge Review Board (AFDRB) Hearing Record, Case Number FD-2003-00270, Hearing Date 22 October 2004, and his corrected DD Form 214, which are at Exhibit B. 

Applicant enlisted in the Regular Air Force on 8 August 1998, and served as a security apprentice until his discharge.

Applicant voluntarily submitted a request for discharge in lieu of trial by court-martial.  A DD Form 458, Charge Sheet, dated 27 January 1999, considered by the AFDRB and furnished by him with this application, reflects the following Charges and Specifications:         
         
a.	On or about 28 December 1998, he did, without authority and with intent to remain away permanently, absent himself from his unit, and did so remain absent in desertion until on or about 18 January 1999

b.	On or about 5 November 1998, he was disrespectful in deportment toward a Staff Sergeant (SSgt), a superior noncommissioned officer (NCO) then known by him to be a superior NCO who was in the execution of his office, by repeatedly interrupting the SSgt, rolling his eyes, and yelling during a counseling session

c.	On or about 18 January 1999, he was disrespectful in language toward a SSgt, a superior NCO, then known by him to be a superior NCO who was in the execution of his office, by repeatedly calling him f--khead and saying “from now on, I’m going to call you F--khead S----,“ or words to that effect

d.	On or about 18 January 1999, he was disrespectful in language toward a SSgt, a superior NCO, then known by him to be a superior NCO who was in the execution of his office, by making derogatory comments to him and saying to him “how did a f--k like you ever become a {sic} NCO,” or words to that effect

e.	On or about 5 November 1998, knowing of his duties, was derelict in the performance of those duties in that he did, from about 2000 hours to about 0100 hours, willfully fail to perform any of his assigned tasks

f.	On or about 5 November 1998, he wrongfully used provoking words, to wit: “typical Mid-Western dumbass with no education,” “dick,” “fag,” and “hey P----- f--k off ass hick that f—-ks his mother,” or words to that effect, towards Airman First Class P-------

g.	On or about 28 December 1998, he wrongfully used provoking words, to wit: “mother f—-ker,” or words to that effect, towards Airman First Class C----

h.	He was, on or about 5 November 1998, disorderly

i.	He was, on or about 18 January 1999, disorderly

Since applicant had less than 20 months of total active military service, he did not receive an Enlisted Performance Report.  His DD Form 214 indicates he is entitled to wear the Air Force Training Ribbon and the Force Protection Basic Occupational Badge.

On 31 March 1999, applicant was discharged in the grade of airman (E-2) under the provisions of AFI 36-3208, Chapter 4, Discharge in Lieu of Court-martial, with a service characterization of Under Other Than Honorable Conditions (UOTHC).  He served a total of 7 months, and 24 days of net active service, with 85 days of lost time (28 December 1998 – 23 March 1999).  

On 22 October 2004, the applicant personally appeared before the AFDRB via video teleconference from Travis AFB, CA, with Andrews AFB, MD.  He was appealing that his discharge be upgraded from UOTHC to Honorable.  The AFDRB concluded that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority, and that the applicant was afforded full administrative due process.  They found that neither the evidence of record nor that provided by the applicant substantiated an inequity or impropriety that would justify a change for the basis of discharge; however, after careful review of the evidence in the record and that presented by the applicant, they found, by a majority vote, that there were certain equitable factors which significantly mitigated the egregiousness of his offenses and justified the upgrade of his discharge characterization from UOTHC to under honorable conditions (general).  They voted to deny his request for upgrade of his discharge to honorable; however, by majority vote, they voted to upgrade his discharge characterization to general under honorable conditions, and AFPC corrected his DD Form 214 accordingly.

Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report which is at Exhibit C.  On 17 August 2007, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days.  In response to our request, applicant provided comments which are attached at Exhibit E.

On 17 August 2007, a request for post-service information was forwarded to the applicant for response within 30 days.  In response to our request, applicant provided post-service information which is attached at Exhibit E.

At the time of the applicant’s discharge, the service characterization received was appropriate under the provisions of the governing instruction in effect at the time.  Attached at Exhibit F is an excerpt from AFI 36-3208, Administrative Separation of Airmen, dated 9 July 2004, which shows the current criteria for determining the characterization of service under similar circumstances.  Additionally, notwithstanding the absence of error or injustice, the Board has the prerogative to grant relief on the basis of clemency if so inclined.

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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.  We took notice of the applicant's complete submission in judging the merits of the case; however, we find no evidence of an error or injustice that occurred in the discharge processing.  The applicant’s contentions are noted; however, he has not provided evidence to substantiate these contentions.  Further, he provides no evidence that the actions of his chain of command in prosecuting him were unreasonable.  Given the seriousness of the charges brought against him and the serious misconduct for which he was legally and mentally responsible, we believe the actions taken against him were reasonable.  Based on the available evidence of record, it appears that the discharge was consistent with the substantive requirements of the discharge regulation and within the commander’s discretionary authority.  The applicant has provided no evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed.  By choosing to request discharge in lieu of trial by court-martial, where the government would have to prove, in a court of law and beyond a reasonable doubt, the Charges brought against him, it appears he was aware of the possibility of receiving a less than honorable discharge characterization, and he has not provided evidence of any impropriety in the manner in which the discharge was conducted, and available records indicate he was afforded all rights to which he was entitled.  We considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis.  Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought.

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(s) involved.  Therefore, the request for a hearing is not favorably considered.

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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-2007-02056 in Executive Session on 10 October 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 19 Jun 07, w/atchs.
    Exhibit B.  AFDRB Hearing Record, dated 22 Oct 04.
    Exhibit C.  USDOJ FBI Report, dated 25 Jul 07.
    Exhibit D.  Letter, AFBCMR, dated 17 Aug 07.
    Exhibit E.  Letter, Applicant, dated 5 Sep 07, w/atchs.
    Exhibit F.  AFI 36-3208 Extracts, dated 9 Jul 04.