RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-04716 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to honorable. APPLICANT CONTENDS THAT: His discharge was inequitable because it was based on one incident over five years of active duty service. He appealed to the Air Force Discharge Review Board (AFDRB) for an upgrade of his UOTHC discharge to an honorable discharge and a change to his narrative reason for separation and reenlistment code. The AFDRB concluded his discharge was based on three different events; however, this was a false conclusion, as his discharge was based on one isolated incident. In support of his request, the applicant submits a personal statement, copies of DD Forms 293, Application for the Review of Discharge from the Armed Forces of the United States; AFHQ Form 0- 2077, AFDRB Hearing Record and various other documents associated with his appeal. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 8 Jul 93, the applicant entered the Regular Air Force. According to DD Form 458, Charge Sheet, on 4 Dec 97, the applicant was charged with two specifications of assault in violation of Article 128, Uniform Code of Military Justice (UCMJ). The specifications are as follows: Specification 1: Unlawfully pushing his spouse to the ground with his hands and placing his hands over her mouth. Specification 2: Striking his spouse in the face with his hand. On 5 Dec 97, the wing commander directed that an Investigating Officer (IO) be appointed to investigate the charge and specifications preferred against the applicant. According to DD Form 458, on 22 Dec 97, the wing commander referred the charge and specifications to trial by SPCM. According to a 21st Air Force/JA (21 AF/JA) memorandum dated 28 Jan 98, a trial date was set for 3 Feb 98. On 20 Jan 98, the applicant, after consulting with counsel submitted a request for administrative discharge in lieu of trial by court-martial. He acknowledged that he could receive an UOTHC, if his request was approved. Additionally, he noted he was aware of the adverse nature of the discharge, the possible consequences thereof and that he may be deprived of veteran’s benefits. On 22 Jan 98, the applicant’s spouse submitted a letter stating in part that she was under a great deal of stress and did not wish to testify. On 23 Jan 98, the applicant’s counsel submitted a letter, noting that due to the applicant’s spouses desire not to testify; her credibility; her initiation of violence; and her injuries, it would be in the best interest of the Air Force, his spouse (alleged victim) and the applicant that he be discharged from the Air Force in lieu of trial by court-martial and be granted a general (under honorable conditions) discharge. On 27 Jan 98, the applicant’s squadron commander recommended to the wing commander that the applicant’s request for discharge in lieu of trial by court-martial be approved. The commander noted the applicant’s inability to effectively deal with his marital problems had evolved to the point where it had a severe impact on the good order and discipline of the squadron and the Air Force. The wing commander reviewed the case and recommended the 21 AF/CC approve the applicant’s request for discharge in lieu of trial by court-martial and ordered that he be discharged with an UOTHC discharge. On 28 Jan 98, the 21 AF/JA reviewed the case and found it to be legally sufficient to support an UOTHC discharge. The Staff Judge Advocate (SJA) noted that the applicant’s spouse was refusing to cooperate any further with the prosecution. Also, the evidence indicated the applicant and his spouse were engaged in a mutual affray. On 29 Jan 98, the 21 AF/CC accepted the applicant’s request for an administrative discharge in lieu of trial by court-martial and directed he be discharged and given an UOTHC discharge. On 10 Feb 98, the applicant was discharged for offenses Triable by Court-Martial with service characterized as UOTHC. He served four years, seven months and three days of total active service. On 1 Jan 13, the applicant submitted a DD Form 293 for an upgrade to his discharge, to change his narrative reason for separation and to change his reenlistment code. According to AFHQ Form 0-2077, Air Force Discharge Review Board (AFDRB) Hearing Record dated 6 Jun 13, the applicant was offered, but declined, a personal appearance before the board and requested that the review be completed based on the available service record. The AFDRB considered and denied the applicant’s appeal. The AFDRB noted that if the applicant could provide additional documented information to substantiate his issues, he should consider exercising his right to make a personal appearance before the board. Also, the AFDRB noted that if the applicant chose to exercise this right, he should be prepared to provide the AFDRB with factual evidence of the inequity/impropriety and any exemplary post-service accomplishments as well as any contributions to the community. Further, the AFDRB found 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 he was provided full administrative due process. On 13 Jun 13, the applicant was notified of the AFDRB’s decision. On 11 Jul 13, the applicant filed a second appeal to the AFDRB and requested a personal appearance. On 18 Jul 13, the applicant was informed that his most recent application could not be processed by the AFDRB because his date of separation (10 Feb 98) was past the AFDRB’s 15 year time limit to process his case and advised him to submit his request to the Board. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) indicated that on the basis of the information provided, they were unable to locate an arrest record. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we find no evidence of an error or injustice that occurred in the discharge processing. Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority. The applicant has provided no evidence, which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. In the interest of justice, we considered upgrading the discharge on the basis of clemency; however, after considering his overall record of service, the infractions which led to his administrative separation and the lack of post-service information we are not persuaded that an upgrade is warranted on that basis. In view of the above and absence of evidence to the contrary, we find no basis upon which 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 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-2013-04716 in Executive Session on 7 Aug 14, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 20 Aug 13, w/atchs. Exhibit B. Applicant’s Master Personnel Records.