RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04045 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His discharge be upgraded from general (under honorable conditions) to honorable. 2. His Reentry (RE) code “2B,” which denotes "Approved Involuntary Separation with Less Than Honorable Discharge,” be changed to allow him to enter into another component or branch of service. 3. His narrative reason for separation and the corresponding separation code be changed from JKK, which denotes “Misconduct (Drug Abuse)” to JKN, which denotes “Misconduct (Minor Infractions).” APPLICANT CONTENDS THAT: He was discharged for admitting that he used a generic substance called “spice." The Staff Judge Advocate (SJA) told his mother that he was called in for questioning because he fit the description of another airman they were looking for. Although they learned that he was not that person, investigators asked him if he had ever used “spice” and he answered "yes." He did not want an attorney present because he was not aware the interrogation was intended for him. He did not fail a drug test, “spice” was not found on his person, his car or his dorm room. He is not a drug abuser. He was racially profiled and discharged when the entire matter was not even about him in the first place. Had he not fit the profile of another airman he would have never been called in for questioning and would still be in the Air Force today. He is truly sorry for any shame he brought upon the Air Force, his family, and himself. He is only 22 years old and does not want to suffer the effects of this discharge for the rest of his life and implores the Board to grant his request In support of his request, the applicant provides a personal statement, copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; urinalysis results, AF IMT 1364, Consent for Search and Seizure; electronic communiqués, Enlisted Performance Reports, memorandums and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 20 January 2009, the applicant enlisted in the Regular Air Force. On 5 May 2011, his commander notified him he was recommending his discharge from the Air Force under the provisions of AFPD 36-32, Military Retirements and Separations, and AFI 36-3208, Administrative Separation of Airmen. The specific reasons for his action were: Between on or about 1 December 2009, and on or about 31 December 2009, he failed to obey a lawful order, by wrongfully entering an “Off-Limits Establishment.” On divers occasions, between on or about l December 2009, and on or about 8 June 2010, he wrongfully and knowingly used an intoxicating substance, commonly referred to as "spice," with the intent to become intoxicated or alter his mood or function. Between on or about 9 June 2010, and on or about 31 December 2010, he again wrongfully and knowingly used "spice," with the intent to become intoxicated or alter his mood or function. As a result of the aforementioned misconduct listed above, the applicant received a Record of Nonjudicial Punishment, dated 4 April 2011. On 5 May 2011, he acknowledged receipt of the discharge notification and submitted statements in his own behalf. On 19 May 2011, the discharge authority approved the administrative discharge and determined the applicant’s service should be characterized as general (under honorable conditions). In an undated letter, the Staff Judge Advocate found the discharge legally sufficient. On 26 May 2011, he was discharged from the Air Force, with service characterized as general (under honorable conditions). His narrative reason for separation is “Misconduct (Drug Abuse).” He served two years, four months, and seven days of total active service. On 11 July 2011, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge. On 5 December 2012, 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. On 23 January 2014, the applicant was notified that the AFDRB considered his application and concluded a change in the type or nature of his discharge was not warranted and his application was denied. THE AIR FORCE EVALUATION: AFPC/DPSOR recommends denial. Based on his overall performance, the discharge authority approved a general (under honorable conditions) discharge. According to AFI 36-3208, paragraph 1.18.2, a general discharge is appropriate when "significant negative aspects of the airman's conduct or performance of duty outweighs positive aspects of the airman's military record." His misconduct in this case clearly outweighed the positive aspects of his service. His discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The applicant did not provide any evidence of an error or injustice that occurred in the discharge processing. The complete DPSOR evaluation is at Exhibit C. AFPC/DPSOA recommends denial of the applicant’s request to change his RE code. The RE code of 2B is required per AFI 36- 2606, Reenlistments in the USAF, based on his involuntary discharge with general (under honorable conditions) character of service. The complete DPSOA evaluation is at Exhibit D. APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: On 10 January 2014, copies of the Air Force evaluations were forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant upgrading his general (under honorable conditions) discharge to honorable or to change his RE code. We took notice of the applicant's complete submission 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 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 portion of his application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice to warrant changing his narrative reason for separation as requested. We note that the discharge actions taken against the applicant were in accordance with the applicable instructions. However, given the applicant’s age at the time coupled with the fact that he voluntarily cooperated with law enforcement officials without counsel to advise him of his rights; it is our opinion that partial relief is warranted. While we do not condone the applicant’s behavior which led to his discharge, we recognize the adverse impact of the applicant’s narrative reason for discharge. Although it may have been appropriate at the time, we believe it would be an injustice for the applicant to continue to suffer its effects. Therefore, we believe that corrective action is appropriate on the basis of clemency and recommend his narrative reason for separation be changed to reflect “Misconduct (Minor Infractions).” Accordingly, we recommend that his records be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 26 May 2011, he was separated under the provisions of AFI 36-3208, paragraph 5.49, with a separation code of JKN, which denotes “Misconduct (Minor Infractions).” The following members of the Board considered this application in Executive Session on 26 June 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-04045 was considered: Exhibit A. DD Form 149, dated 22 August 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, 28 October 2013. Exhibit D. Letter, AFPC/DPSOA, 6 December 2013. Exhibit E. Letter, SAF/MRBR, dated 10 January 2014. 1 2