RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2016-00266
		
						COUNSEL: 

						HEARING DESIRED:  YES

APPLICANT REQUESTS THAT:

1.  His discharge be rescinded and he be returned to active duty and receive back pay for the period between 12 May 15 and the date he is returned to active duty.

2.  As an alternative, his narrative reason for separation be changed from Misconduct (Serious Offense) to Minor disciplinary Infractions, and the characterization be upgraded to Honorable.

3.  He be paid for 43 days of accrued leave prior to being discharged.  

APPLICANT CONTENDS THAT:

His discharge for an abusive sexual contact offense was erroneous; he did not commit the offense.  He was given a Letter of Reprimand (LOR) for the alleged offense, and he was not given the opportunity to face his accuser – either at a criminal proceeding or at administrative discharge board.  Additionally, he alleges unlawful command influence prompted his discharge.  

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 26 Mar 13. 

On or about 18 Oct 14, an Office of Special Investigation (OSI) revealed that while on temporary duty (TDY) at McMurdo Station, Antarctica, the applicant approached a female contractor from behind, reached underneath her arms and groped her breasts without her consent.

On 20 Mar 15, as a result of the Oct 14 incident, the applicant received a LOR.   

On 7 Apr 15, the applicant was rendered the AF Form 910, Enlisted Performance Report (EPR) for the period 26 Nov 14 thru 31 Mar 15, with an overall rating 5 (Truly Among the Best).  

On 20 Apr 15, the applicant’s commander notified him he was recommending him for General (Under Honorable Conditions) discharge for Misconduct.  

On 5 May 15, the base discharge authority directed that the applicant be separated with a General (Under Honorable Conditions) service characterization.   

On 12 May 15, the applicant was furnished a General (Under Honorable Conditions) discharge, and was credited with two years, one month, and seventeen days of active service.

The remaining relevant facts pertaining to this application are described in the memoranda prepared by the Air Force offices of primary responsibility (OPR), and AFPC/JA, which are included at Exhibits C, D, E, and H.

AIR FORCE EVALUATION:

AFPC/DP2SSM recommends denial indicating there is no evidence of an error or an injustice regarding the applicant’s request for 43 days of accrued leave paid to him.  While they noted the applicant’s DD Form 214, block #16 reflects the applicant was not paid for any accrued leave days; a review of the applicant’s master military pay record reflects he was paid 43 days accrued leave.  

A complete copy of the AFPC/DP2SSM evaluation with attachment is at Exhibit C.  

AFPC/DP2STM-SEP recommends denial indicating there is no evidence of an error or an injustice regarding the discharge processing (the Separation Program Designator (SPD) code, narrative reason for separation, and characterization of service).  The commander determined his misconduct discredited the good order and discipline of both the unit and the Air Force.  In accordance with AFI 36-3208, Administrative Separation of Airmen, paragraph 5.52, “airmen are subject to discharge for misconduct based on the commission of a serious offense if a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts Martial (MCM).  The commander and discharge authority concluded that the offense of abusive sexual contact and the resulting negative impacts upon the victim and the organization outweighed any positive aspects of the applicant’s brief military career.  A general discharge service characterization is warranted when “significant negative aspects of the airman’s conduct or performance of duty outweigh the positive aspects of the airman’s military record.  Since there is no specific SPD code and narrative reason for “sexual assault”,  the narrative reason for separation and corresponding SPD code used for “misconduct: commission of a serious offense” is the correct one indicated on the applicant’s DD Form 214.  Regarding the applicant’s contention he was not afforded a discharge board hearing so that he could face his accuser; he did not meet any of the criteria listed in AFI 36-3208, paragraph 6.2.2, Board Hearing, airmen recommended for discharge for a reason in Chapter 5.  

A complete copy of the AFPC/DP2STM-SEP evaluation is at Exhibit D.

AFPC/JA did not find that the manner in which the Air Force proceeded with the applicant’s discharge was legal error.  Nevertheless, they are somewhat troubled that under all the facts and circumstances, officials chose to proceed in a fashion that prevented the applicant from having the opportunity to confront the witnesses against him.  In this case, the separation authority determined that a preponderance of the evidence showed that the applicant did commit the offense, notwithstanding the applicant’s submission in response to the LOR.  There is some evidence of hesitation on the part of the squadron commander to initiate discharge and not pursue a waiver or retention.  Nevertheless, ultimately, the commander did recommend discharge, and the separation authority agreed.  While there may be different interpretations and opinions of the evidence and investigation in this case, and reasonable minds could differ as to the weight to be given various pieces of evidence, a reasonable person could determine that a preponderance of the evidence existed that the applicant committed the crime of Abusive Sexual Contact under Uniform Code of Military Justice, Article 120.  Therefore, they opine, the way this case was processed (LOR and notification discharge without a board) was not legal error.  However, the BCMR should closely review whether the method of proceeding in this case rises to the level of an injustice.  

The applicant’s alternative request is the narrative reason on his DD Form 214 be changed from Misconduct (Serious Offense) to Minor Disciplinary Actions.  Granting this alternative request would not require changing the actual basis for discharge, though the entire argument in the applicant’s DD Form 149 is devoted to that purpose, but merely the way it is described on the DD Form 214.  Though the narrative reason and coding on a DD Form 214 is the purview of different Action Offices, they note that it is their understanding that there is not a routinely used and prescribed Narrative Reason, Separation Program Designator and Reenlistment Code used for the Sexual Assault discharge basis.  “Misconduct (Serious Offense)” is simply what AFPC/DP2STM has decided to use for these cases.  It would theoretically be possible to grant the applicant’s alternative request and simply change the narrative reason on the DD Form 214 without rescinding the discharge.  Doing so would be dependent on AFPC/DP2STM’s rationale for using a particular Narrative Reason, which is unknown to their office.  

If the BCMR were to determine that the way this case was handled—given all the facts and circumstances—shocks the conscience, then it should find that the discharge was an injustice and grant the applicant the primary relief he has requested, namely, to rescind his discharge and to return him to active duty with back pay.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Through counsel, the applicant asserts he did not commit the abusive sexual contact offense, and offers some specific points in support of his response.  He refutes AFPC/DP2SSM’s advisory opinion that the purported master military pay record reflects he was paid for his accrued leave.  In support of his response, he provides his bank statements covering the period of his discharge, and recounts a telephone conversation with his finance office regarding the matter.  He refutes AFPC/JA’s opinion alleging they did not discuss the merits of his case in regards to the sexual assault in detail.  Specifically, he argues that while he understands the legal standard of preponderance of the evidence, the burden of proof was not met due to a lack of discussion about his statements of the case, and the fact he passed a polygraph that showed he did not commit the alleged offense.  He opines that a closer look at another airman’s account of the night will help show he is telling the truth.  He reiterates the allegation of unlawful command influence prompting his discharge.  

The applicant highlights that he did not have an opportunity to officially confront his accuser, cross-examine witnesses, or present witnesses in his defense.  Additionally the applicant outlines concerns that political and policy influences in some way forced the hand of the commanders in this case, leading them to initiate discharge when in fact, discharge was not their desire or, in their opinion, warranted.  

The applicant further states that the “unreadable and incomplete emails” mentioned by AFPC/JA were obtained through a FOIA request, and were in the same form and condition he received them.  In addition, he refutes the JA opinion that there was no statement or letter from anyone in his chain of command stating their desire to retain him.  An attachment to his original DD Form 149 is a copy of an email from the AFTAC/CCQ to the 45 SW/JA stating their recommendation was to retain him.  The applicant’s counsel provides a 4-page memorandum addressing the legal issues presented in the AFPC/JA advisory.  Of note is counsel’s disagreement that the procedures followed in this case did not result in error or injustice.  Counsel opines that using the tools specifically designed for rehabilitative purposes to literally end the applicant’s Air Force enlistment and keep him from obtaining certain future employment violates the basic premise of due process.  Additionally, he reiterates the allegations of Unlawful Command Influence.  

A complete copy of the applicant’s response with attachments is at Exhibit G.

ADDITIONAL AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial indicating there is no evidence of an error or an injustice warranting back pay for 43 days accrued leave.  After reviewing the original application and rebuttal, they determined there is no additional proof showing the applicant was not paid the 43 days of accrued leave.  The Master Military Pay Account (MMPA) file reflects 43 days paid to the applicant on 12 May 15.  

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

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 8 Feb 17 for review and comment within 30 days (Exhibit I).  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 injustice warranting granting the applicant’s request to rescind his discharge and be returned to active duty, receive back pay, and be paid for 43 days of accrued leave.  We took notice of the applicant’s complete submission in judging the merits of the case to include his rebuttal; however, we agree with the opinion and recommendation of AFPC/DP2SSM and AFPC/DP2STM-SEP to deny the aforementioned requests for relief.  In this respect, we are persuaded the discharge was consistent with the procedural and substantive requirements of the discharge instructions, was within the discretion of the discharge authority, and there is no evidence submitted indicating otherwise.  Additionally, the applicant’s Master Military Pay Account (MMPA) reflects 43 days of leave was paid to the applicant on 12 May 15.  Based upon the presumption of regularity in the conduct of governmental affairs and without evidence to the contrary, we must assume that the applicant's discharge and payment of accrued leave was proper and in compliance with appropriate directives.  Regarding the applicant’s request for his narrative reason for separation to be changed from Misconduct (Serious Offense) to Minor Disciplinary Infractions, and the characterization of his service be upgraded to Honorable, 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.  In view of this, we find this portion of the 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.

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-2016-00266 in Executive Session on 20 Apr 17 and 3 Apr 18 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-00266 was considered:

	Exhibit A.  DD Form 149, dated 13 Jan 16, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2SSM, dated 2 May 16, w/atchs.
	Exhibit D.  Memorandum, AFPC/DP2STM-SEP, dated 11 Jul 16.
	Exhibit E.  Memorandum, AFPC/JA, dated 24 Jul 16.  
	Exhibit F.  Letter, SAF/MRBR, dated 7 Sep 16.
	Exhibit G.  Applicant’s Rebuttal, dated 4 Oct 16. 
	Exhibit H.  Memorandum, AFPC/DP2SSM, dated 7 Feb 17.  
	Exhibit I.  Letter, SAF/MRBR, dated 8 Feb 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.