RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04872

  EFRAIN HUERTA	COUNSEL: NONE
	
	HEARING: YES

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be upgraded to honorable.

APPLICANT CONTENDS THAT:

He admitted to being gay and shortly thereafter was discharged under the pretense of disciplinary issues. The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered active duty into the Regular Air Force on 21 Feb 96.  

On 18 Feb 97, the applicant was notified of his commander’s intent to recommend that he be discharged from the Air Force under the provisions of AFPD 36-32 and AFI 36-3208, paragraph 5.49 for Misconduct; Minor Disciplinary Infractions.  

The reasons for this action is:  He failed to answer questions regarding post duties; he demonstrated a lack of commitment to studying/training; he failed to handle his financial and personal problems; he failed to show for work on diverse occasions; he neglected duties and did not get a valid leave number.  For these actions he received four (4) Letters of Reprimand (LORs), an Article 15 in which he received a suspended reduction to the grade of E-2, and 30 days of Correctional Custody (due to a medical condition he received a Temporary Suspension of Correctional Custody).

On 20 Feb 97, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 24 Feb 97.

On 26 Feb 97, the applicant received a general (under honorable conditions) discharge after serving 1 year and 6 days of active service. 

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, F, and G.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the application.  The applicant has failed to present sufficient evidence to demonstrate a legal error in his Nonjudicial Punishment (NJP).  Moreover, he received his NJP action in 1997 and knew, at the time of his discharge that he was being discharged with a general service characterization.  Only so much of the applicant’s requested relief which calls into question the legal sufficiency of his NJP action is within the purview of JAJM’s office, and they find no evidence to suggest that his NJP action was unsupported in law or fact.  The applicant was well aware that his actions would not be tolerated by his command but continued to commit misconduct nonetheless.  They recommend AFPC be consulted as questions regarding service characterizations are beyond the scope of their office. 

The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION AND CLEMENCY BULLETIN:  

The Board sent a copy of the AFLOA/JAJM advisory opinion and Clemency Bulletin (see Exhibit D) to the applicant on 21 Dec 17 for comment (Exhibit E), but has received no response.  

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DP2STM recommends denying the application.  The base discharge authority had sufficient documentation to substantiate the reason for discharge and the character of service.  The base discharge authority concluded that significant negative aspects of the applicant’s behavior and/or conduct outweighed any positive aspects of the applicant’s brief military career.  Thus, based on review of the applicant’s request and the master of personnel record, there is no error or injustice with the discharge processing.   

The complete advisory is at Exhibit F.

AFPC/JA recommends denying the application.  His original discharge was based solely on Misconduct:  Minor Disciplinary Infractions.  There is also no evidence in the record that the applicant ever claimed to be a homosexual until after he had been notified of the discharge action.  In addition, there were numerous aggravating factors in the applicant’s record.  

The complete advisory is at Exhibit G.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 17 May 18 for comment (Exhibit H), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an injustice.  The Board concurs with the rationale and recommendations of AFLOA/JAJM, AFPC/DP2STM and AFPC/JA and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  The discharge was not unduly harsh or disproportionate to the offenses committed.  The Board notes the applicant states he was discharged for being gay and is requesting relief under the DADT policy.  However, in a memorandum, dated 20 Sep 11, the Under Secretary of Defense published guidance that states the Service Discharge Review Boards should normally grant requests to re-characterize the discharge to honorable, when both of the following conditions are met: (1) the original discharge was based solely on DADT or a similar policy in place prior to enactment of DADT and (2) there were no aggravating factors in the record, such as misconduct.  The Board considered upgrading the applicant’s discharge based on the repeal of DADT; however, the evidence reflects that there were aggravating factors in the record.  Additionally, in the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issue involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-04872 in Executive Session on 18 Jul 18:

, Chair
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 19 Oct 16.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 12 Dec 17.
Exhibit D. Clemency Bulletin, undated.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 21 Dec 17.
Exhibit F:  Advisory opinion, AFPC/DP2STM, dated 12 Apr 18.
Exhibit G: Advisory opinion, AFPC/JA, dated 18 Apr 18.
Exhibit H: Notification of Advisories, dated 17 May 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9 pertaining to Docket Number BC-2016-04872.