RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-05253

 						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1. His general discharge be upgraded to honorable.

2. His authority and reason for discharge was for Misconduct-Commission of Serious Offense, SPD: HKM and a reenlistment code of 6T be changed.

APPLICANT CONTENDS THAT:

In a nine-page brief, the applicant’s counsel makes the following key contentions:

	On 16 February 2013, the applicant, while off duty, participated in the production of a video known colloquially as a “Harlem Shake” video.  The video was subsequently uploaded and shared on the video sharing website YouTube.  As a result of the video an investigation was launched against the applicant (and others) to determine whether the applicant had engaged in lewd and offensive behavior.  

The Command Directed Investigation (CDI) report, dated 8 March 2013, concluded by a preponderance of the evidence that the applicant committed the following violations:

		West Virginia Code 15-lE-81 (Conspiracy): That the applicant admitted to conspiring with another individual to use government property to produce and distribute the video in question. 

		West Virginia Code lS-lE-92 (Failure to Obey Order or Regulation): That the applicant failed to obey an order or regulation when he made the video because he 1) left his post to make the video, 2) did not call in an open door, 3) took off his weapon to produce the video, and 4) misused government equipment during the production of the video. 

		West Virginia Code 15-lE-114 (General Article): That the applicant brought discredit upon the state when he produced and distributed the video.

On 4 May 2013, the applicant received a non-judicial punishment (NJP) for his involvement in the production of the video.  The applicant’s punishment included a reduction in rank to E-1 (six month suspension), a Letter of Reprimand (LOR), and forfeiture of pay.

On 30 May 2013, the applicant received notice from the Assistant Adjutant General-Air that he was recommending he be discharged from the West Virginia Air National Guard.  The basis of the recommendation was for:

	Participating in the production of a “lewd and lascivious” video that was filmed in the Maintenance Group classroom.

	Using government property as props (specifically named were Air Force issued fleece outer garments, Air Force issued ABU pants, and an Air Force issued beret).

	Making a video that was “offensive, disrespectful, and brought discredit to [the Applicant], [the Applicant's] unit, and the West Virginia National Guard.”

The applicant's command committed two blatant errors during the course of his discharge: 1) they prevented the applicant from seeking legal counsel and 2) they failed to provide even a scintilla of evidence that the applicant’s behavior was lewd and lascivious acts as intended by the governing instructions.

The applicant’s punishment for his involvement was clearly excessive given the harmless nature of his conduct and the outstanding reputation and support the applicant enjoys from both his peers and superiors.  Military Harlem Shake videos are ubiquitous and are produced and uploaded to YouTube by all branches of the military.  These videos routinely depict the use of “government property as props” such as vehicles, weapons, uniforms, gas masks, barracks, aircraft, photocopiers, and offices.  Further, most Harlem Shake videos contain some element of harmless sexuality, none of which rise to the level of sexual deviance.  Many of these videos depict commanding officers participating in the video.  

It is respectfully submitted to the Board that the applicant should have his reentry code changed from RE-6T to RE-1, that his character of service should be changed from general to honorable, and that the narrative reason for the applicant's discharge should be changed from Misconduct Serious Offense to Miscellaneous.

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

STATEMENT OF FACTS:

The applicant initially enlisted into the Air National Guard (ANG) on 4 October 2009.

According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, effective 3 December 2010, he was released from active duty with a narrative reason of “COMPLETION OF INITIAL ACTIVE DUTY TRAINING.”  

According to the redacted copy of the CDI, which was provided by the applicant, all allegations noted in the applicant’s contentions were SUBSTANTIATED.

According to Special Order P-000930, dated 9 November 2013, the applicant was furnished a general discharge effective 16 August 2016.  

According to the applicant’s NGB Form 22, effective 16 August 2016, the authority and reason for discharge was for Misconduct-Commission of Serious Offense, with an SPD code of HKM and a reenlistment code (RE) of 6T.

On 12 May 2016, SAF/MRBR, notified the applicant that he had failed to exhaust other administrative avenues of relief prior to requesting relief from the Air Force Board of Correction of Military Records.  The applicant was advised that the Air Force Discharge Review Board was the first level of review for those seeking a change to their discharge characterization, narrative reason and reenlistment code.

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

NGB/A1PP recommends the board return the applicant’s application until such time it can be determined applicant exhausted relief options through the appropriate administrative processes.  If applicant submits his request to the Air Force Discharge Review Board (AFDRB) and still wishes to pursue a BCMR action, the applicant should then resubmit and request relief from the AFBCMR board.  However, the applicant has failed to provide proof that he exhausted all reasonable administrative remedies prior to submission to the AFBCMR.  The applicant did not provide proof he requested relief from the AFDRB.  In accordance with the governing instructions, the applicant must exhaust all other available administrative remedies (otherwise the Board may return the request without considering it).

A complete copy of the NGB/A1PP evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 15 June 2016 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has not 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.  In this respect, we note this Board is the highest administrative level of appeal within the Air Force.  As such, an applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board, as required by the governing Air Force Instruction.  The Air Force office of primary responsibility has reviewed this application and indicated there is an available avenue of administrative relief the applicant has not first pursued.  In view of this, we find this application is not ripe for adjudication at this level as there exists a subordinate level of appeal that has not first been depleted.  Therefore, in view of the above, we find no basis to recommend granting the relief sought in this application.

THE BOARD DETERMINES THAT:

The applicant be notified that all available avenues of administrative relief have not been exhausted; and the application will only be reconsidered upon submission of documentary evidence indicating that said avenues of administrative relief have been exhausted.  

The following members of the Board considered AFBCMR Docket Number BC-2015-05253 in Executive Session on 26 January 2017 under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 17 Nov 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, SAF/MRBR, dated 12 May 16
	Exhibit D.  Memorandum, NGB/A1PP, dated 6 Jun 16.
	Exhibit E.  Letter, SAF/MRBR, dated 15 Jun 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter with regard to AFBCMR Docket Number BC-2015-05253.