AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD	
NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)
(b) (6)	HEARING DATE
2017-05-25	CASE NUMBER
FD-2016-00193	
TYPE
General	X	PERSONAL APPEARANCE		NON-PERSONAL APPEARANCE	
COUNSEL	NAME OF COUNSEL AND OR ORGANIZATION	ADDRESS AND OR ORGANIZATION OF COUNSEL	
Yes	No			
	X			
MEMBER SITTING	VOTE OF THE BOARD	
	HON	GEN	UOTHC	OTHER	DENY	
(b) (6)	X*#					
(b) (6)	X*#					
(b) (6)	X*#					
(b) (6)	X*#					
(b) (6)	X*#					
(b) (6)						
ISSUES	INDEX NUMBER	EXHIBITS SUBMITTED TO THE BOARD	
		1	ORDER APPOINTING THE BOARD	
		2	APPLICATION FOR REVIEW OF DISCHARGE	
		3	LETTER OF NOTIFICATION	
		4	BRIEF OF PERSONNEL FILE	
			COUNSEL’S RELEASE TO THE BOARD	
			ADDITIONAL EXHIBITS SUBMITTED AT TIME OF   PERSONAL APPEARANCE	
			TAPE RECORDING OF PERSONAL APPEARANCE HEARING	
APPLICANT’S ISSUE AND THE BOARD’S DECISIONAL RATIONALE ARE DISCUSSED ON THE ATTACHED AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE.	
Case heard in Washington, D.C.

Advise applicant of the decision of the Board, the right to a personal appearance with/without counsel, and the right to submit an application to the AFBCMR.

# - Narrative Reason
* - Reentry Code	(b) (6)

SIGNATURE OF BOARD PRESIDENT	DATE: 8/1/2017	
TO:
SAF/MRBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78150-4742	FROM:
SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL AIR FORCE DISCHARGE REVIEW BOARD
1535 COMMAND DR, EE WING, 3RD FLOOR ANDREWS AFB, MD 20762-7001	
AFHQ FORM 0-2077, JAN 00	(EF-V2)	Previous edition will be used

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2016-00193	

GENERAL: The applicant appeals for upgrade of discharge characterization to Honorable, to change the reason and authority for the discharge, and to change the reenlistment code.

Pursuant to 10 USC §1553 this board included a member who is a clinical psychologist or psychiatrist, or a physician with training on mental health issues connected with post traumatic stress disorder or traumatic brain injury and/or special training on mental health disorders.

The applicant appeared and testified before the Discharge Review Board (DRB), without counsel, at Joint Base Andrews, MD, on 25 May 2017. A witness was present and testified on the applicant’s behalf.

**The following additional exhibits were submitted at the hearing: Exhibit 5: Applicant’s Contentions

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FINDING: After a review of the record, the Board unanimously voted to grant the relief of the requested upgrade as discussed below.

DISCUSSION: The Air Force Discharge Review Board, under its responsibility to examine the propriety and equity of an applicant’s discharge, is authorized to change the characterization of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the applicant. The applicant’s record of service included a discharge for Sexual Assault. Her misconduct included aiding and abetting an Air Force member to commit a sexual act when another Air Force member was incapable of consenting because she was impaired by an intoxicant; and committing a sexual assault by touching directly the lips of an Air Force member when that member was incapable of consenting to the sexual contact because she was impaired by an intoxicant.

The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to determine if the discharge met the pertinent standards of equity and propriety. The applicant received an Under Other Than Honorable Conditions discharge for Misconduct –Minor Infractions. The applicant contends the discharge was both inequitable and improper. The applicant contends that the discharge was inequitable because it was based on aiding and abetting the misconduct of another Air Force Member. However, the Air Force member was granted a “Set Aside” by the United States Air Force Court of Criminal Appeals, therefore there could be no subsequent “aiding or abetting” charge against the applicant. The applicant also contends that the lesser of the two charges did not mandate a UOTHC discharge. By considering the lesser charge as a basis for discharge, the applicant believes that the punishment was too harsh and did not consider her stellar 17 year career. The applicant contends that the discharge was improper because she did not receive fair or due process. The applicant states that the formal charges against her were dropped and she never received non-judicial punishment prior to the discharge. The applicant believes that since the court-martial conviction of the other Air Force member was “Set Aside”, her discharge characterization should be over turned, and the rank of MSgt should be returned to her.

The DRB reviewed the entire record and the information provided and found that the discharge was both improper and inequitable. The Board found that there was an error of procedure associated with the discharge at the time of issuance. The Board found that as requested by the panel members and Area Defense Counsel, the Legal Advisor did not allow into evidence the court-martial transcript during the	

Discharge Board, which may have had relative probative value. By not allowing review of the transcript, The Board found that the applicant’s rights were prejudiced. The Board also found that the Air Force Court of Criminal Appeals did not find that the government intentionally failed to disclose exculpatory evidence in the case regarding the other Air Force member. However, the Air Force Court of Criminal Appeals “concluded that the devastating evidence concerning the accuser’s credibility and the veracity of her testimony, if considered by Petitioner’s court-martial in the light of all other pertinent evidence, would probably produce a substantially more favorable result for the Petitioner.” The Board found that the discharge was inequitable because while it is possible to appear before a Discharge Board for potentially nonconsensual kissing, it is inconsistent with the alleged victim’s original complaint of rape. The Board concluded the discharge was appropriate for the reasons which were the basis for this case.

A discharge is upgraded only if it is established that an inequity or impropriety took place at the time of discharge. After a thorough review of the record and advice from the mental health specialist, the Board found no indication that any mental health issues had an impact on the applicant's misconduct or discharge. Additionally, the Board found sufficient evidence to justify an upgrade of the discharge characterization, change of reason and authority for the discharge, and change to the reenlistment code.

The applicants request for retention or return to active service was not considered by the board, as it is outside of the scope by which the DRB is authorized to adjudicate.  The Board highly recommends that if the applicant can provide additional information to substantiate her contentions, she should consider exercising her right to apply to the Air Force Board of Correction of Military Records (AF BCMR) utilizing a Department of Defense Form 149.  If the applicant chooses to exercise this right, she should provide this case file, and all applicable evidence of inequity or impropriety, as well as proof of any exemplary post- service accomplishments or contributions to the community.

CONCLUSION: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and the applicant was not provided full administrative due process.

However, in view of the foregoing findings, the Board concludes that the overall quality of applicant’s service is more accurately reflected by an Honorable discharge, the reason for the discharge is more accurately described as Secretarial Authority and the reenlistment code should be changed to 3K under the provisions of 10 USC §1553.

Attachment: Examiner's Brief