RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-00012

 			COUNSEL:  

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1.  He be reinstated into the Air Force as an E-4 with an effective date of separation of 2 August 2013, with immediate promotion to E-5.

2.  He receive full back pay and active duty benefits (Leave days etc.) from the date of separation to present.

3.  Removal of any and all records of Non-Judicial Punishment (NJP) proceedings held on or about 21 June 2013, from his official military personnel file and any other permanent or temporary military records.

4.  Removal of the Letter of Reprimand (LOR) dated 10 October 2012.  

5.  Or, in the alternative, his DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to change his:

Separation program designator (SPD) code from JKN “Misconduct – Minor Infractions” to KBK “Completion of Required Service.”

Reentry (RE) code from 2B “Separated with a general or under other than honorable conditions (UOTHC) discharge” to an RE code in the “1” series.

Narrative reason for separation from “Minor Infractions” to “Expiration Term of Service.”

He receive all back pay from the date of separation (2 August 2013) to the date of his contractual end of obligated service (5 January 2015).

APPLICANT CONTENDS THAT:

In a lengthy statement, through counsel, the applicant contends he was unjustly discharged.  He asserts the commander abused his discretion when he unjustly and erroneously discharged him.  The discharge was based on very minor incidents.  Furthermore, the commander failed to consider all of the evidence and circumstances before directing discharge.  In addition, he was not provided an opportunity to overcome his deficiencies prior to the initiation of the administrative discharge proceedings.  

Per the final page of counsel’s brief, the applicant’s request for reinstatement into the Air Force in the grade of E-3 effective the date of separation of 2 August 2013, with immediate promotion to the grade of E-4, was changed to reflect full reinstatement into the Air Force at the pay grade of E-4 effective the date of separation of 2 August 2013, with immediate promotion to the grade of E-5.

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 18 November 2008.

On 11 July 2013, the applicant’s commander notified him he was recommending his discharge from the Air Force with an under honorable conditions (general) discharge for misconduct.  The specific reasons for the discharge action were:

	a.  On 6 October 2012, the applicant was arrested and charged with driving while impaired (DWI) with a blood alcohol concentration (BAC) of .18 and for operating a motor vehicle at an excessive speed.  For this misconduct, he received an LOR, unfavorable information file (UIF) and a demotion in grade from senior airman (SrA) to airman first class (A1C).

	b.  On 27 June 2013, the applicant received an Article 15 for failure to go on or about 3 June 2013, at the prescribed time to his appointed place of duty. 

The applicant acknowledged receipt of the discharge action.

A legal review was conducted and found the case to be legally sufficient and recommended a general discharge without probation and rehabilitation.

On 25 July 2013, the discharge authority directed the applicant be discharged with a general discharge without probation and rehabilitation.

According to the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, he was discharged from active duty with an “honorable” characterization of service on 2 August 2013, a narrative reason for separation of misconduct (minor infractions), and a separation code of JKN and RE Code of 2B.  He was credited with 4 years, 8 months, and 15 days of active service.   

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:

AFLOA/JAJM recommends denial of the applicant’s request to set aside the NJP, indicating there is no evidence of an error or an injustice.  NJP is authorized by Article 15, Uniform Code of Military Justice (UCMJ).  This procedure permits commanders to dispose of certain offenses without trial by court-martial unless the service member objects.

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 service member is entitled to consult a lawyer before making any decisions, and a lawyer may assist the service member throughout the proceedings, to include when determining whether to accept the NJP or demand trial by court-martial.  Accepting the proceedings is simply a choice of forum; it is not an admission of guilt.  NJP is also not, when imposed, a criminal conviction.

A service member accepting NJP may submit written matters to, and have a hearing with, the commander imposing the punishment.  The service member generally has the right to have a spokesperson at the hearing, may request that witnesses appear and testify, and may present matters in defense, extenuation, and mitigation orally, in writing, or both.  The commander must fully and fairly consider the evidence, including any matters presented by the service member.  While no specific standard of proof applies to NJP proceedings, including appeals, commanders are counselled to recognize that a service 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.

Service 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 service member, the imposing commander and/or the appellate authority may grant the service 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 Staff Judge Advocate’s (SJA) 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 service 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.

They defer to AFPC/JA regarding the legal sufficiency of the applicant’s administrative discharge.  However, they find the NJP sufficient in law and fact.  The applicant was afforded all procedural due process rights during the NJP proceedings.  The NJP was properly considered as part of the basis for the administrative discharge.  Therefore, they recommend denial in setting aside the NJP.

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

AFPC/DP2SSM recommends denial of the applicant’s request to remove  all records of NJP proceedings held on or about 21 June 2013 and the LOR dated 10 October 2012 from his official MPR.

According to AFI 36-2907, Unfavorable Information File (UIF) Program, “For enlisted members, commanders on G-series orders refer optional documents LOAs, LOCs, or LORs to the offending service member along with an AF Form 1058, Unfavorable Information File Action, before establishing an UIF.  Do not use AF Form 1058 if you file an optional Article 15 in the UIF.  Note: Mandatory UIF documents (Article 15s with punishment exceeding 1 month {31 days or more}, court-martial or civilian court convictions) are not referred via AF Form 1058.”

Furthermore, commanders maintain the UIF and all of its documents/contents until the final disposition date unless early removal of the document or UIF is clearly warranted.  Commanders initiate removal action via AF Form 1058, or memorandum, and the individual should acknowledge the action.  Commanders may elect to file a LOR in an UIF for enlisted personnel.  The commander had the authority to warrant a LOR if sufficient evidence was provided.

A complete copy of the AFPC/DP2SSM evaluation is at Exhibit D.

AFPC/DP2STM recommends denial of the applicant’s request to change his SPD code and corresponding narrative reason for separation or to reinstate him to active duty, indicating there is no evidence of an error or injustice.

The SPD code and corresponding narrative reason for separation are correct as indicated on the applicant’s DD Form 214.  AFI 36-3208, Administrative Separation of Airmen, states a pattern of misconduct consisting solely of these infractions in the current enlistment makes an airman subject to discharge.  These infractions may involve failure to comply with non-punitive regulations or minor offenses under the UCMJ.  Infractions of this type result, as a rule, in informal (reduced to writing) or formal counseling, letters of reprimand, or Article 15 non-judicial punishments.  The commander chose to discharge the applicant under these provisions of the AFI.  The applicant’s acts of misconduct sufficiently established a basis for discharge under the provisions of the AFI 36-3208 and the discharge authority approved and directed the discharge.  There is no error with the SPD code and narrative reason for separation.

The applicant contends that he should be reinstated to active duty. Before recommending discharge, the commander indicated that he reviewed the applicant’s entire record.  The commander concluded that the applicant was given ample opportunity to conform to acceptable standards but continued to fall below the Air Force standard of acceptable behavior.  DP2STM concurs with this assessment and recommends the request for reinstatement to active duty be denied.

There is an error to the service characterization listed on the current DD Form 214.  The commander and base discharge authority determined that a general discharge was more appropriate than an honorable.  The general service characterization is reflected in the discharge package and was updated in the applicant’s electronic record; however, the personnel clerk preparing the DD Form 214 entered “honorable” in block 24 in error.  AFI 36-3208 states that a general discharge service characterization is warranted when “the airman’s service has been honest and faithful but significant negative aspects of the airman’s conduct or performance of duty outweigh the positive aspects of the airman’s military record.”  This is the characterization directed by the discharge authority.  Upon the Board’s conclusion of the applicant’s case, our office needs to contact the DD Form 214 office to correct the applicant’s service characterization accordingly.  This was the only error detected in this case.

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

AFPC/JA recommends denial indicating there is no evidence of an error or an injustice regarding the applicant’s administrative discharge. 

The applicant’s administrative discharge was based on AFI 36-3208, Administrative Separation of Airmen, which authorizes administrative discharge for a pattern of misconduct consisting solely of minor disciplinary infractions in the current enlistment.  These infractions may involve failure to comply with nonpunitive regulations or minor offenses under the UCMJ.  Infractions of this type result, as a rule, in informal or formal counseling, LORs, or Article 15 NJPs.  As noted by counsel, a discharge under this paragraph necessitates that the service member be given an opportunity to overcome his deficiencies before discharge action starts.

In this case, the misconduct forming the basis of the discharge was, 1) the applicant’s speeding and driving under the influence of alcohol (DUI) and 2) a failure to go to work at the required time due to involvement in an alcohol-related incident.  Through counsel, the applicant essentially argues that he was targeted for discharge based on the original DUI offense and that the squadron commander jumped at the chance to discharge him without providing an opportunity to overcome his deficiencies when he was subsequently involved in the incident with his friends and failed to show up for work on time.

AFPC/JA notes that the applicant appears to have had a clean military record except for the LOR, administrative demotion action, and the NJP.  He apparently performed well in his special operations unit and on various deployments.  As noted by the individuals who wrote character letters on his behalf, the applicant was well regarded for his ability to competently perform his duties.  Despite his on-duty competence, however, we also note the undisputed seriousness of the speeding/DUI incident that resulted in the applicant’s LOR and demotion.  As the applicant, himself, remarked in his response to the LOR and demotion action, he engaged in poor judgment resulting in a terrible mistake that put not only himself at risk, but also a teammate and the civilian drivers on the road with him.  He requested, and was given, the opportunity to earn back his commander’s trust and respect.  Yet it appears he was unable to fully regain the trust and respect of his leadership due, in part, to the second incident of misconduct in June 2013.

The applicant’s squadron commander was within his discretion to recommend discharge, and the separation authority within his discretion to direct discharge, considering the applicant had previously been given an opportunity to modify his behaviors after his DUI offense.  Although the administrative discharge action was initiated soon after the applicant’s NJP action, the previous LOR and demotion action should have served as sufficient warning for the applicant to adhere to every standard expected of an Airman. Yet the applicant continued to demonstrate questionable judgment and violate the UCMJ.  The applicant has the burden of showing that the commander’s actions constituted material error or injustice.  In this case, we do not believe he has carried that burden.  Besides the actions being procedurally correct, we do not think the applicant suffered an injustice.  The courts have for many years held that an “injustice” within the meaning of 10 U.S.C. § 1552 means more than an action that seems unfair to an applicant or that might cause collateral consequences. It has been defined as an action or treatment by military authorities that “shocks the sense of justice, but is not technically illegal. 

AFPC/JA recommends denying the requested relief and, if appropriate, direct that his DD Form 214 be corrected to reflect a service characterization of general.

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

AFPC/DP3SP recommends denial of the applicant’s request for immediate promotion to the grade of SSgt, if reinstated, as he was never selected for promotion to the grade of SSgt or held that rank prior to discharge.  DP3SP states AFLOA/JAJM and AFPC/JA have reviewed the case, find no error or injustice regarding the legal sufficiency of the administrative demotion and NJP action, and recommend denial of the applicant’s requests.  

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

AFPC/DP3ST recommends denial of the applicant’s alternative request to change his RE code to the “1” series, indicating there is no evidence of an error or an injustice regarding 

AFI 36-2606, Reenlistment in the USAF, states not to separate members in the RE code “1” series except for “1J,” “Eligible to reenlist, but elects separation.”  (All Airmen selected under the Selective Reenlistment Program [SRP] and elect separation are given RE code 1J), and the applicant cannot be awarded a RE code 1J as he was not reenlistment eligible, but recommended for involuntary separation and the involuntary separation was approved.

AFPC/DP3ST defers recommendation for reinstatement to the appropriate OPR as the RE code was not a factor leading to the applicant’s separation.

However, if the Board reinstates the applicant on active duty, his exact RE code will be determined at the time of reinstatement due to the numerous variables that are currently unknown.

A complete copy of the AFPC/DP3ST evaluation is at Exhibit H.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant and Counse1 on 1 October 2016 and 18 Jul 2017, for review and comment within 30 days (Exhibits I and J).  As of this date, no response has been received by this office.

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 an injustice to warrant removing the non-judicial punishment or LOR from his records.  We also find no basis to reinstate him in the grade of E4 or E5 with the associated back pay and benefits or to grant any of his alternate requests.  Persuasive evidence has not been provided which would lead us to believe that the administrative actions taken by his commander were beyond his scope of authority, unduly harsh or disproportionate to the offenses committed.  While the applicant’s contentions are duly noted, his case has undergone an exhaustive review by the Air Force offices of primary responsibility (OPR) and we do not find the evidence provided sufficient to overcome their assessment of the case.  Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden of proof that he has been the victim of an error or an injustice.  In view of the above and in the absence of persuasive evidence to the contrary, we find no basis to recommend granting any of the relief sought in this application.

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 issue(s) 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-2016-00012 in Executive Session on 24 January 2017, 1 February 2017, and 18 August 2017, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00012 was considered:

	Exhibit A.  DD Form 149, dated 18 Dec 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 12 Jul 16.
	Exhibit D.  Memorandum, AFPC/DP2SSM, dated 28 July 16.
	Exhibit E.  Memorandum, AFPC/DP2STM, dated 15 Aug 16.
	Exhibit F.  Memorandum, AFPC/JA, dated 25 Aug 16.
	Exhibit G.  Memorandum, AFPC/DP3SP, dated27 Sep 16.
	Exhibit H.  Memorandum, AFPC/DP3ST, dated 28 Sep 16.
	Exhibit I.  Letter, AFBCMR, dated 6 Oct 16.
	Exhibit J.  Letter, AFBCMR, dated 18 Jul 17.

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.