RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-02231

  							COUNSEL:  YES

							HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1.  Her general (under honorable conditions) discharge be upgraded to honorable.

2.  Her separation code be changed from JHJ (Unsatisfactory Performance) to KBK (Expiration Term of Service).

3.  Her reentry (RE) code be changed from “2B” (involuntarily separated under AFR 39-10, with a general or under-other-than-honorable-conditions discharge) to “1”.

4.  Her narrative reason for separation changed from “unsatisfactory performance” to “release from active duty upon termination of enlistment.”

5.  She receive back pay from her date of separation (7 Nov 91) to the end of her obligated service (5 Oct 92).

6.  Her Air Force Good Conduct Medal (AFGCM) be reinstated.

7.  Her grade of senior airman (E-4) be reinstated.

8.  Her Air Force Specialty Code (AFSC) be corrected to 92450 (Medical Laboratory Specialist).

APPLICANT CONTENDS THAT:

Counsel makes the following major contentions:

1.  The applicant was illegally subjected to a mental health evaluation.

2.  The applicant was wrongfully subjected to a hostile work environment.  

In support of her request, she provides training certificates, letters of appreciation and recommendation for commissioning, copies of her DD Form 214, Certificate of Release or Discharge from Active Duty, and her Air Force Form 910, Enlisted Performance Report, for the period of report from 5 Oct 88 through 29 Jun 90, and her official transcript from the University of Phoenix.  

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

STATEMENT OF FACTS:

On 5 Oct 88, the applicant enlisted in the Regular Air Force.

In a letter dated 19 Aug 91, The Chief, Mental Health Services, indicated the applicant was evaluated by clinical interview on 25 Jul 91, and it was determined there is no evidence of mental defect, emotional illness, or psychiatric disorder of sufficient severity to warrant disposition though military medical channels.

On 28 Aug 91, the applicant was offered Nonjudicial Punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for three specification of dereliction of duty.  Her commander purported that she had negligently failed to perform quality control procedures on lab equipment, failed to follow proper phlebotomy techniques for drawing blood from an military patient, and failed to use the correct needle to draw blood from an infant patient.

On 3 Sep 91, the applicant consulted with legal counsel before waiving her right to trial by court-martial.  She submitted written matters on her own behalf and requested a personal appearance with her commander for his consideration before a final decision was made.  After careful consideration of the matters presented, the applicant’s commander found that she did commit the offenses alleged. 

On 9 Sep 91, the commander imposed a reduction in grade from E-4 to E-3, with a new date of rank of 10 Sep 91.  On that same date, the applicant acknowledged her commander’s decision and elected not to appeal the NJP.

On 11 Sep 91, the record was examined and found the NJP legally sufficient.

On 8 Oct 91, the applicant’s commander notified her that he was recommending she be discharged under the provisions of AFR 39-10, Administrative Separation of Airmen, for her continued substandard duty performance as evidenced by four Memorandums for Record, five Letters of Counseling, two Letters of Reprimand, and one Article 15.  On that same date, the applicant acknowledged receipt of the discharge notification and on 16 Oct 91, submitted a written presentation for consideration.

On 21 Oct 91, the Staff Judge Advocate recommended the discharge authority order the applicant’s separation from the Air Force with a general (under honorable conditions) discharge for unsatisfactory performance, without probation and rehabilitation.

On 28 Oct 91, she was denied the Air Force Good Conduct Medal.  

On 5 Nov 91, the discharge authority directed the applicant be discharged with a general (under honorable conditions) discharge without probation and rehabilitation.

On 7 Nov 91, the applicant received a general (under honorable conditions) discharge with an RE code 2B.  Her separation code (JHJ) and corresponding narrative reason for discharge is “Unsatisfactory Performance.”  She was credited with 3 years, 1 month and 3 days of active duty service.

On 14 Jul 92, she applied to the Air Force Discharge Review Board (AFDRB) to have her AFSC corrected, be awarded the Good Conduct Medal, and have her discharge upgraded.  On 10 Mar 94, the AFDRB considered her discharge only and denied her request.  

On 19 Sep 95, the applicant appeared and testified before the AFDRB for an upgrade of her discharge and on that same date, the AFDRB again denied her request.  

On 26 Jun 15, a request for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit C).  

The applicant responded and indicated that she has been a community volunteer, attended jury duty, has corresponded with government officials concerning a variety of issues, authored an article for a health journal and contributed to numerous charities.  

In support of her requests, the applicant provides copies or training certificates, letters and various other documents associated with her appeal.

Pursuant to the applicant’s request, the Federal Bureau of investigation, Washington, D.C., indicated on the basis of the data furnished they were unable to locate an arrest record.

The applicant’s complete response, with attachments, is at Exhibit D. 

AIR FORCE EVALUATION:

AFPC/DP2STM recommends denial of upgrading the applicant’s discharge to honorable indicating there is no evidence of an error or an injustice.  The applicant’s commander and the separation authority concluded that notwithstanding numerous counseling sessions, remedial training and an Article 15, there was no improvement in her performance, but rather a continued decline in her performance.  These circumstances outweigh any positive aspects of the applicant’s brief military career.  Therefore, the applicant’s character of service is correct as indicated on her DD Form 214, Certificate of Release or Discharge from Active Duty.

A complete copy of the AFPC/DP2STM evaluation is at Exhibit E.

AFPC/DPSOA recommends denial of changing the applicant’s RE code indicating there is no evidence of an error or an injustice.  On 5 Nov 91, the discharge authority directed applicant’s discharge for unsatisfactory duty performance with a general (under honorable conditions) character of service.  The applicant received a RE code of 2B as required by AFR 35-16, The USAF Reenlistment and Retention Programs, Table 6.2 based on her involuntary discharge with (under honorable conditions) character of service.

A complete copy of the AFPC/DPSOA evaluation is at Exhibit F.

AFLOA/JAJM recommends denial of reinstating the applicant’s grade to E-4 indicating there is no evidence of an error or an injustice.  NJP is authorized by Article 15, UCMJ, which allows commanders to dispose of certain offenses without trial by court-martial unless the member objects.  The applicant was afforded all procedural due process rights during the NJP proceedings and did not appeal the finding of guilt or severity of punishment at the time of imposition.  In addition, the application for relief is untimely.  

Pursuant to the provisions of Article 15, service members first must be notified by their commanders of the nature of the charged offenses, the evidence supporting the offenses, and the commander's intent to impose the punishment.  The commander must fully and fairly consider the evidence, including any matters presented by the member.  While no specific standard of proof applies to NJP proceedings, including appeals, commanders are counselled to recognize that a member is entitled to demand trial by court-martial, in which case proof beyond a reasonable doubt of each element of every offense by legal and competent evidence is a prerequisite to conviction.

Members who wish to contest their commander's determination of guilt or the severity of the punishment imposed may appeal.  The appeal is reviewed first by the imposing commander, and then by an appellate authority who is a superior officer in the chain of command.  After considering any additional matters submitted by the member, the imposing commander and/or the appellate authority may grant the member’s appeal in whole or in part.  The commander's action must be temperate, just, and conducive to good order and discipline.  Although it is the SJA’s responsibility to advise and help the commander evaluate the facts and determine what offense was committed, if any, it is the commander who makes the decision to impose NJP and fashions an appropriate punishment within his/her statutory authority. 

After the commander has made a decision and the appellate process has been exhausted, an independent legal review is performed on all Article 15 actions.  The review ensures that the evidence supports the cited misconduct, that the member was afforded all procedural due process rights established in the Manual for Courts-Martial, and that the imposed punishment is within the commander’s authority.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit G.

AFPC/Enlisted Promotions defers to AFLOA/JAJM’s recommendation to deny reinstating the applicant’s grade to E-4 indicating there is no evidence of an error or an injustice.  The applicant did not request removal of the Article 15 that reduced her to the grade of E-3.  However, AFLOA/JAJM has reviewed the case and found no error or injustice with regard to the NJP.

A complete copy of the AFPC/Enlisted Promotions evaluation is at Exhibit H.

AFPC/DP3SP recommends denial of reinstating the applicant’s AFGCM.  The AFGCM was authorized by the Secretary of the Air Force on 1 Jun 63 and is awarded to enlisted personnel during a three-year period of active military service or for a one-year period of service during a time of war.  Airmen who are awarded this medal must have had character and efficiency ratings of excellent or higher throughout the qualifying period.  The applicant received NJP on 10 Sep 91; therefore, she did not have three continuous years of honorable active duty service and did not meet the established award criteria for the AFGCM.  To grant relief would be contrary to the criteria established by DoD Manual 1348.33, Manual of Military Decorations and Awards, Secretary of the Air Force, Chief of Staff, and/or the War Department.

A complete copy of the AFPC/DP3SP evaluation is at Exhibit I.

AFPC/DP3ST recommends denial of changing the applicant’s AFSC to 92450 indicating there is no evidence of an error or an injustice. The authority governing the specialties represented in the DD Form                               214, is contained in AFI 36-3202, Separation Documents, Table 4, How to Prepare DD Form 214, Rule 14.  The rule states “Enter the primary AF Specialty code (PAFSC) and all additional AFSCs in which the member served for one year or more, during member's continuous active military service.  In each AFSC, show the highest skill level in which the member performed duties.  For each AFSC give the AFSC title (Not Duty Title) with the years and months of service.”  The applicant’s service in AFSC 924X0 is actually 2 years and 11 months, not 3 years as identified on the DD Form 214. 

The applicant entered active duty 5 Oct 88 and graduated from basic military training in Nov 88.  The applicant then went on to technical training and graduated from the Medical Laboratory Specialist course on 5 May 89.  The applicant went on to graduate from Medical Laboratory Specialist (Phase II) on 6 Feb 90.  Even though the applicant graduated from the 92450 course, there is no file in the applicant’s master military personnel record that shows she was upgraded to AFSC 92450 nor does documentation exist identifying duty performance at the 5-skill level.  The applicant’s final EPR closed out 30 days prior to her separation on 7 Oct 91 with the DAFSC of 92430.  Additionally, the applicant met an Air Force Discharge Review Board and the letter requesting the review identifies her PAFSC as 92430 at time of discharge.

A complete copy of the AFPC/DP3ST evaluation, with attachments, is at Exhibit J.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel refutes AFPC/DP2STM’s advisory stating the facts and circumstances are not supported by the record of evidence.  The applicant’s conduct and performance of duty clearly and convincingly outweigh the negative aspects and pursuant to AFR 39-10, her discharge should be upgraded to honorable.

Counsel’s complete response, with attachments, is at Exhibit L.

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 an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we found no evidence that convinces us the applicant was illegally subjected to a mental health evaluation or subjected to a hostile work environment.  We agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and the Air Force Legal Operations Agency and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Furthermore, the applicant has not provided evidence to persuade us grant her request of back pay from her date of separation to her contractual end of obligated service date.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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 issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2015-02231 in Executive Session on 14 Jul 16, under the provisions of AFI 36-2603:

, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-02231 was considered:

Exhibit A.  DD Form 149, dated 20 Apr 15, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Memorandum, SAF/MRBR, dated 26 Jun 15, w/atch.
Exhibit D.  Letters, Counsel, dated 20 Jul 15 and 22 Oct 15,
  w/atchs.
Exhibit E.  Memorandum, AFPC/DP2STM, dated 5 Feb 16.
Exhibit F.  Memorandum, AFPC/DPSOA, dated 23 Feb 16.
Exhibit G.  Memorandum, AFLOA/JAJM, dated 21 Mar 16.
Exhibit H.  Memorandum, AFPC/Enlisted Promotions, 
  dated 23 Mar 16.
Exhibit I.  Memorandum, AFPC/DP3SP, dated 22 Apr 16.
Exhibit J.  Memorandum, AFPC/DP3ST, dated 5 May 16, w/atchs.
Exhibit K.  Letter, AFBCMR, dated 20 May 16.
Exhibit L.  Letter, Counsel, dated 14 Jun 16, w/atchs.