RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02128

xxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His discharge under other than honorable conditions (UOTHC) be upgraded to honorable.

APPLICANT’S CONTENTIONS

His discharge was unjust and his rights were violated.  Due to the unlawful order by his commander violating his right to financial privacy and subsequent events, he had no other option than to request and accept an administrative discharge, in order to avoid a trial by court martial, which would have caused further hardship.  He requested help from his leadership on financial responsibilities but never received any help and was instead administratively punished.  In support of his request for clemency, the applicant provides his resume.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman first class (E-3).  

On 20 Oct 88, DD Form 458, Charge Sheet, indicates court martial charges were filed against the applicant for unsatisfactory duty performance and financial irresponsibility.

On 17 Apr 89, due to an issue of whether the applicant and spouse gave consent to access financial records, the applicant’s commander recommended the applicant be administratively discharged from the Air Force in lieu of court martial for financial irresponsibility.  The specific reasons for the action were as follows:

a. On 31 Mar 88, Letter of Reprimand (LOR) issued for financial irresponsibility.

b. On 28 Jul 88, LOR issued for financial irresponsibility.

c. 1988, numerus worthless drafts in excess of $100.
 
On 12 Apr 89, the applicant requested a discharge in lieu of a trail by court-martial.

On 19 Apr 89, the discharge action was found legally sufficient, and the discharge authority approved the recommendation on 21 Apr 89.

On 26 Apr 89, the applicant received a UOTHC discharge. 

For more information, see the excerpt of the applicant’s record at Exhibit B.

POST-SERVICE INFORMATION

On 6 Jun 19, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 29 Jul 19 (Exhibit D).  According to the report, although the applicant was arrested for shoplifting on 29 Sep 90, the court rejected the case on 4 Oct 90.  He was also arrested for check fraud on 18 Mar 92, and for a probation violation on 20 May 92.  For the probation violation, the court ordered him to reside in and/or participate in a treatment program of a community corrections center and once employed, pay 25 percent of his weekly gross income for his subsistence.
 
APPLICABLE AUTHORITY

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7.

On 6 Jun 19, the Board staff provided the applicant a copy of the clarifying guidance (Exhibit C).

According to AFI 36-3208, Administrative Separation of Airmen, the types of service characterization are as follows: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trial by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

FINDINGS AND CONCLUSION

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations period established by 10 U.S.C. § 1552(b).

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented; insufficient post-service information and the criminal history provided by the applicant, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-02128 in Executive Session on 24 Jun 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 17 Mar 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Letter to applicant, clarifying guidance, dated 6 Jun 19.
Exhibit D:	FBI report from applicant, dated 29 Jul 19.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.