RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02726 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His general (under honorable conditions) discharge be upgraded to honorable. 2. His narrative reason for separation be changed to “Convenience of the Government.” 3. His Reentry (RE) code be changed to “1.” 4. His rank and pay grade at time of discharge be changed to the grade of Master Sergeant (MSgt). _______________________________________________________________ APPLICANT CONTENDS THAT: His actions did not warrant the discharge he received. Other airmen were involved in his situation and were not discharged. The discharge was retaliation for filing a Congressional complaint against his commander. Clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a misconduct discharge while others who were accused of the same offense were able to retire. Under current standards, he would not have received the type of discharge he received. His overall average conduct and efficiency ratings were marked as outstanding. In support of his requests, the applicant provides a personal statement, copies of his Enlisted Performance Reports (EPR), letters of support, DD Form 214, Certificate of Release or Discharge from Active Duty; and other various documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 2 Mar 1992, the applicant entered active duty. On 24 Apr 1996, he was convicted by Special Court-Martial (SPCM) for conspiracy. Punishment consisted of a reprimand, reduction to the grade of Senior Airman (SrA) and confinement for 90 days. In an undated letter, the applicant’s commander notified him that he was recommending he be discharged from the Air Force for commission of a serious offense In Accordance With (IAW) Air Force Instruction (AFI) 36-3208, Administrative Separation of Airmen, with a general (under honorable conditions) discharge. The specific reason for the recommendation was his court-martial conviction for wrongful appropriation of promotion test materials. On 5 Sep 1996, the applicant acknowledged the discharge notification, his right to consult legal counsel and submit statements in his own behalf. On 7 Feb 1997, the applicant was notified that an administrative discharge board would be convened to determine whether he should be separated. The commander’s notification letter was amended to include that the applicant took possession of a Specialty Knowledge Test (SKT) booklet in violation of Article 92, UCMJ; a violation which authorizes a dishonorable discharge and confinement for two years. On 18 Feb 1997, the applicant acknowledged the addendum to the commander’s notification for recommendation of discharge. On 19 Feb 1997, an administrative discharge board found the applicant did, on or about 15 Jan and 15 Feb 1995 conspire to commit wrongful appropriation of a controlled Air Force enlisted promotion test item; an offense which a punitive discharge would be authorized for a closely related offense under the Manual for Courts-Martial (MCM). The applicant was recommended for a general (under honorable conditions) discharge and probation and rehabilitation with a conditional suspension of the discharge. On 13 Mar 1997, the Staff Judge Advocate (SJA) determined the administrative discharge board proceedings were legally sufficient. The SJA recommended the administrative discharge board’s recommendation for discharge with a general (under honorable conditions) discharge be adopted but recommended the applicant be denied probation and rehabilitation. The serious nature of the applicant’s misconduct was conscious and deliberate and resulted in the loss of his security clearance and Air Force Specialty Code (AFSC). Favorable consideration for probation and rehabilitation is premised on the potential for rehabilitation and for further useful military service and the applicant had limited potential for either. On 17 Mar 1997, the discharge authority approved the discharge without probation and rehabilitation. On 2 Apr 1997, he was discharged with service characterized as a general (under honorable conditions) with a narrative reason for separation of “Misconduct.” He served 14 years, 10 months and 17 days on active duty. On 4 Mar 2014, the AFBCMR staff offered the applicant an opportunity to provide information pertaining to his activities since leaving the service. He states his discharge was inequitable because it was based on an isolated incident in over 15 years of service with no other adverse actions. The discharge was also improper because his new commander used a misdemeanor SPCM charge which occurred a year prior as the major reason for the administrative discharge proceedings. The SPCM did not recommend discharge but instead recommended he be offered probation and rehabilitation with a conditional suspension of the discharge. On 23 Mar 1995, he tested for promotion to the grade of MSgt. By this time, the base testing facility had already changed out the entire testing materials to ensure the integrity of the test. He was notified in Jun 1995 that he had been selected for promotion to the grade of MSgt. The SPCM found him not guilty of Article 134, bribery and graft. However, he was found guilty of Article 81, conspiracy to wrongfully acquire test materials. He vehemently denies the accusations to this day. He has never received any other type of punishment. In Sep 1996, he appealed the SPCM reduction to the grade of SrA to his Congressman. As a result, his new commander directed his supervisor to write a referral EPR and start administrative discharge proceedings. He consulted a military attorney who advised him to request an administrative discharge board. His post military activities include completion of a bachelor’s and master’s degree. He is a co-business owner and vice- president of two small businesses and was employed by Kraft Foods. ? The applicant provides a Federal Bureau Investigation (FBI) background check and Ohio Bureau of Criminal Investigation reports dated 11 Mar 2014 which show no convictions on file. The applicant’s complete response, with attachments, is at 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 find no evidence of an error or injustice that occurred during the discharge process. Based on the available evidence of record, it appears 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. In the interest of justice, we considered upgrading the characterization of the applicant’s discharge based on clemency; however, after considering his overall record of service, the seriousness of the offense which led to his administrative separation and the post-service documentation, we are not persuaded that an upgrade on this basis is warranted. Therefore, in view of the above and in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought. ____________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that 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-2013-02726 in Executive Session on 24 Apr 2014, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 31 May 2013, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFBCMR, dated 4 Mar 2014, w/atch. Exhibit D. 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