RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04598 COUNSEL: HEARING DESIRED: YES ______________________________________________________________ APPLICANT REQUESTS THAT: 1. His discharge be upgraded from general (under honorable conditions) to honorable. 2. His Reentry (RE) code “2B,” which denotes "Approved Involuntary Separation with Less Than Honorable Discharge,” be changed. 3. His narrative reason for separation be changed from “Misconduct (Minor Infractions),” to “Secretarial Authority.” ________________________________________________________________ APPLICANT CONTENDS THAT: In an 11-page memorandum, the applicant’s counsel presents the following major contentions: The applicant was only 21 years of age, understandably immature, and unaware of the consequences of using a substance like “Spice.” “Spice” has very recently been introduced to American consumers, and viewed as harmless. In his response to the discharge notification, he freely admitted his mistakes, apologized, and accepted responsibility. He self-referred and was not directed into a drug and alcohol program. Notwithstanding his successful completion of a 28-day inpatient drug and alcohol treatment program, he was discharged and not provided an opportunity to determine his rehabilitative potential. This action will deter other service members from seeking help for fear that disciplinary action will also be taken in their case. His involuntary separation action was directly related to his participation in the 28-day inpatient program as evidenced by the fact he completed the program on 3 Nov 2010. The statement from his supervisor concerning his admitted use of "Spice" was not taken until 10 Dec 2010 - two months after the fact and used as a pretext to initiate the involuntary separation action on 4 Jan 2011. He admitted and accepted responsibility for using “Spice,” however, the issue only became known because he "sought help" from his supervisor. In accordance with AFI 44-121, Alcohol and Drug Abuse Prevention and Treatment (Adapt) Program, paragraph 3.7.1.3, such communication was protected limited use information. In support of his request, the applicant provides an 11-page Memorandum of Facts, Law and Argument, with 18 exhibits and various other documents associated with his request. His complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 5 Aug 2008, the applicant enlisted in the Regular Air Force. On 4 Jan 2011, his commander notified him he was recommending his discharge from the Air Force under the provisions of AFPD 36-32, Military Retirements and Separations, and AFI 36-3208, Administrative Separation of Airmen, for Misconduct: Minor Disciplinary Infractions. The specific reasons for his action are reflected in the Notification Memorandum at Exhibit B. On 4 Jan 2011, he acknowledged receipt of the discharge notification and was afforded the opportunity to submit statements in his own behalf. On 7 Jan 2011, the discharge authority approved the applicant’s administrative discharge and determined his service should be characterized as general (under honorable conditions). In making his determination, he did not consider the applicant’s self-identified drug abuse. In an undated letter, the Staff Judge Advocate found the discharge legally sufficient. On 25 Jan 2011, he was discharged from the Air Force, with service characterized as general (under honorable conditions). His narrative reason for separation is “Misconduct (Minor Infractions).” He served 2 years, 5 months, and 21 days of total active service. On 14 Apr 2011, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge. On 23 Jul 2012, the applicant was notified that the AFDRB considered his application and concluded a change in the type or nature of his discharge was not warranted and his application was denied. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSOR recommends denial of the applicant’s request to change his separation code and narrative reason for separation. DPSOR states that based on his overall performance, the discharge authority approved a general (under honorable conditions) discharge. According to AFI 36-3208, paragraph 1.18.2, a general discharge is appropriate when "significant negative aspects of the airman's conduct or performance of duty outweighs positive aspects of the airman's military record." His misconduct in this case clearly outweighed the positive aspects of his service. The commander stated that prior to recommending the discharge; the applicant had received two Letters of Reprimand and five Letters of Counseling. Given the applicant's misconduct, including a failure to comply with regulations, threatening other military individuals and other minor offenses under the Uniform Code of Military Justice, his commander recommended a discharge characterization of general (under honorable conditions). The applicant demonstrated a lack of respect for authority and a total disregard for policies and procedures constantly throughout his training. His record further shows he was counseled on numerous occasions for his behavior and afforded an opportunity to overcome his deficiencies. His incidents of misconduct disrupted good order, discipline, and morale within the military community; hence, discharge was appropriate. His discharge to include his RE code and narrative reason for separation was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The applicant did not provide any evidence of an error or injustice that occurred in the discharge processing. The complete DPSOR evaluation is at Exhibit C. AFPC/DPSOA recommends denial of the applicant’s request to change his RE code. DPSOR states that this RE code of 2B is required per AFI 36-2606, Reenlistments in the USAF, based on his involuntary discharge with general (under honorable conditions) character of service. The complete DPSOA evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Counsel states that the advisory opinions do not address any of the twenty issues raised in the Memorandum of Facts, Law and Argument dated 27 Sep 2012, previously submitted to the Board. Counsel further asserts that the manner and procedure relied upon to involuntarily separate him from active duty violated his Constitutional Fifth Amendment right to adequate due process. In further support of his request, counsel provides a statement and a copy of the Memorandum of Facts, Law and Argument dated 27 Sep 2012. His complete response with attachments is at Exhibit F. ________________________________________________________________ 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 error or injustice. Counsel contentions that the advisory opinions do not address any of the twenty issues raised in the Memorandum of Facts, Law and Argument dated 27 Sep 2012 are duly noted. However, based on the available evidence of record, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the evidence of record or the rationale provided by the Air Force. Although counsel states that the applicant’s Fifth Amendment rights were violated, we found no impropriety in the characterization of applicant's discharge and it appears that the responsible officials applied appropriate standards in effecting the separation, and the applicant has not provided persuasive evidence demonstrating that pertinent regulations were violated or that he was not afforded all the rights to which entitled at the time of discharge. As indicated by DPSOR, the applicant’s misconduct clearly outweighed the positive aspects of his service. Therefore we agree with the opinions and recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice. Therefore, we find no basis to recommend granting the relief sought. 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 that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 this application in Executive Session on 16 Jul 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-04598: Exhibit A. DD Form 149, dated 25 Sep 2012, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, 28 Nov 2012. Exhibit D. Letter, AFPC/DPSOA, 4 Jan 2013. Exhibit E. Letter, SAF/MRBR, dated 21 Jan 2013. Exhibit F. Letter, Counsel, dated 12 Feb 2013.