RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03474 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. Her general (under honorable conditions) discharge be upgraded to honorable. 2. Her rank of senior airman (SrA) be restored. ________________________________________________________________ APPLICANT CONTENDS THAT: She was wrongly mistreated, harassed and discriminated against because she was African-American, would not have a romantic relationship with her supervisor like her coworker did, and because she reported her supervisor for violating her Health Insurance Portability and Accountability Act (HIPAA) rights. The negative aspects do not outweigh the good that she did while she was in the military. She had alcohol problems and agrees that her repeated lateness was wrong; however, she was never given help, support, or encouragement from her supervisor or from her chain of command. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 30 May 01, the applicant entered active duty in the Regular Air Force. On 29 Apr 04, the applicant, then a senior airman, was offered nonjudicial punishment under Article 15, UCMJ. She was charged with one specification of failure to go to her appointed place of duty, in violation of Article 86, UCMJ. On 30 Apr 04, the commander decided that the applicant had committed the charged offense and imposed punishment consisting of a suspended reduction to the rank of airman first class and thirty days correctional custody. On 2 August 2004, the applicant was given notice of the vacation of the suspended nonjudicial punishment imposed on 30 Apr 04, under Article 15, for the same offense. She was charged with two specifications of failure to go to her appointed place of duty, in violation of Article 86, UCMJ. On 5 Aug 04, the commander decided the applicant had violated one or more of the conditions of her suspension and vacated the suspended portion of the punishment imposed in the 30 Apr 04, which resulted in the applicant's reduction in rank to airman first class. On 10 Aug 04, the applicant, then an airman first class, was again offered nonjudicial punishment under Article 15, for the same offense. The applicant was charged with one specification of failure to go to her appointed place of duty, in violation of Article 86, UCMJ. On 23 Aug 04, the commander decided that the applicant had committed the charged offense and imposed punishment consisting of a reduction to the rank of airman, thirty days extra duty and a reprimand. The applicant appealed the commander's decision. On 21 Sept 04, the appellate authority denied the applicant's appeal. On 18 Oct 04, the squadron commander notified the applicant of administrative discharge action for a pattern of misconduct. For a full list of the offenses, please see the commander’s notification letter at Exhibit B. On 18 Oct 04, the applicant acknowledged receipt of the discharge notification, and after consulting with legal counsel, submitted statements in her own behalf. On 29 Sep 04, the base legal office reviewed the case and found it legally sufficient to support separation and recommended the applicant be discharged with a general (under honorable conditions) discharge. On 2 Nov 04, the applicant was discharged under honorable conditions in the grade of airman, by reason of misconduct. She served on active duty for a period of 3 years, 5 months, and 3 days. On 28 Feb 13, a request for information pertaining to her post- service activities was forwarded to the applicant for response within 30 days (Exhibit G). In response to the request, the applicant submitted a personal statement and summarized her military career and achievements. She has a 7 year old daughter, has graduated from massage school, and works at Macy’s and is doing massage therapy part- time. She recently started treatment at the Department of Veterans Affairs for depression, and hopes that she can learn to trust again and be happy. In further support of her appeal, the applicant provides three character letters. The applicant’s complete response, with attachments, is at Exhibit H. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial of her request to upgrade her discharge. DPSOR states that the applicant did not provide any evidence or identify any errors or injustices that occurred in the discharge processing. Based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. DPSOR further states that airmen are subject to separation for misconduct that disrupts order, discipline, or morale within the military community. The applicant received numerous verbal counseling on various occasions. The applicant’s repeated incidents of misconduct reflected an unwillingness to conform to Air Force standards. According to AFI 36-3208, Administrative Separation of Airmen, paragraph 1.18.2, if an airman’s service has been honest and faithful, a general (under honorable conditions) service characterization is warranted when significant negative aspects of the airman’s conduct or performance of duty outweigh the positive aspects of the airman’s military record. The negative aspects of the applicant’s short Air Force career outweigh the positive. Therefore, a general service characterization is most appropriate in this case. The complete DPSOR evaluation is at Exhibit C. AFLOA/JAJM recommends denial of the applicant’s request to set aside two of the three nonjudicial punishment actions that resulted in her reduction in grade from senior airman to airman. JAJM states the applicant has not shown a clear error or injustice. The applicant does not allege any error or injustice with regard to the processing of the nonjudicial punishment actions against her. She argues that her supervisor did not like her, discriminated against her based on race and failed to support her. The applicant was, however, punished not by her immediate supervisor based on his personal evaluation of her, but by her squadron commander for the repeated failure to report for duty on time. The commander at the time of the Article 15 had the best opportunity to evaluate the evidence in the case. With that perspective, the commander exercised the discretion that the applicant granted him when she accepted the Article 15 and found nonjudicial punishment appropriate in this case. The legal review process showed that the commander did not act arbitrarily or capriciously in making his decisions. The applicant admits that she had drug and alcohol problems and agrees that her repeated lateness was wrong. She argues, however, that she was never given the help, support, or encouragement from her supervisor or from her chain of command that she was due. A set aside of an Article 15 is the removal of the punishment from the record and the restoration of the service member’s rights, privileges, pay, or property affected by the punishment. Setting aside an Article 15 action restores the member to the position held before imposition of the punishment, as if the action had never been initiated. A set aside of punishment should not routinely be granted. Rather, a set aside is to be used strictly in the rare and unusual case where a genuine question about the service member’s guilt arises or where the best interests of the Air Force would be served. The complete JAJM evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates her original contentions. She states that she waived her right to a trial by court-martial when she received her Article 15, because she was in fact late for work but, when she was 10-15 minutes late, she made sure she stayed an extra 20-30 minutes to make up her time or until her extra duties were completed. She is unable to produce any evidence of her supervisor’s adulterous affair. Regarding the JAJM comment that she admitted she had a drug problem, she would like to set the record straight that although she did drink alcohol often to escape from the situation she was in at the time, she has never used any illegal drugs. She self-referred to the Alcohol and Drug Abuse Prevention and Treatment Program (ADAPT) to get her drinking under control. She was also treated for suicidal thoughts and severe depression. Although her request is untimely, she prays the Board will waive the time limitations. The applicant's complete response is at Exhibit F. ________________________________________________________________ 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 to warrant upgrading her discharge. We took notice of the applicant's complete submission to include her rebuttal submission and post- service information in judging the merits of the case; however, we agree with the opinions and recommendations 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. In the interest of justice we considered upgrading the characterization of applicant’s discharge based on clemency; however, after considering her overall record of service, the numerous infractions which led to her administrative separation, we are not persuaded that an upgrade on this basis is warranted. With respect to her request that her rank be restored to SrA, the applicant has not provided any evidence to substantiate that her reductions in grade as a result of the Article 15 punishments were inappropriate. Therefore, we find no basis to restore her grade to SrA. In view of the above and in the absence of evidence to the contrary, we find no basis upon which to favorably consider her requests. ________________________________________________________________ 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 Docket Number BC-2012-03474 in Executive Session on 30 Apr 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 9 Jul 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 20 Sep 12. Exhibit D. Letter, AFLOA/JAJM, dated 25 Oct 12. Exhibit E. Letter, SAF/MRBR, dated 5 Nov 12. Exhibit F. Letter, Applicant, undated. Exhibit G. Letter, SAF/MRBC, dated 28 Feb 13. Exhibit H. Letter, Applicant, dated 20 Mar 13, w/atchs.