RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-02762

xxxxxxxxxxxxx	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

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

His narrative reason for separation be changed to “for the convenience of the government.”

His reentry (RE) code be changed to “1.”

APPLICANT’S CONTENTIONS

His discharge was procedurally defective and unfair at the time.  There was a hasty command-initiated request for separation and a rush to judgment that a problem could not be fixed. There were never any substantiated charges filed against him for the theft of the leather jacket.  He had the ability to perform his duties and his leadership should have evaluated him to determine whether he had a long-term problem or whether there had been a misunderstanding.  He has been out of the military for more than 21 years, and has been leading a productive and accomplished life without any instance of misconduct since his involuntary discharge from the Air Force. He has raised a family, been a good husband, volunteered in his community, and held a steady job while working his way up to become a manager.

In support of his request for clemency, the applicant provides a personal statement and a letter of support from his church. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).

On 29 Jul 97, the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFPD 36-32, Military Retirements and Separations and AFI 36-3208, Administrative Separation of Airmen, for commission of a serious offense.  The specific reason for the action was on 26 Jun 97, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for theft of a leather jacket at an off-base establishment.  He received a reduction in grade to E-1 and forfeiture of pay ($450 per month, for 2 months), suspended until 2 Jan 98.

On 6 Aug 97, the Deputy Staff Judge Advocate found the discharge action legally sufficient.

On 18 Aug 97, the discharge authority directed the applicant be discharged for commission of a serious offense, with a general service characterization.  Probation and rehabilitation were denied.

On 28 Aug 97, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct” and his RE code is 2K.  He was credited with 1 year, 6 months, and 8 days of total active service.

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

POST-SERVICE INFORMATION

On 31 Jul 19, the Board sent the applicant a request for post-service information and advised the applicant he was required to provide a Federal Bureau of Investigation (FBI) Identity History Summary Check, which would indicate whether or not he had an arrest record.  In the alternative, the applicant could provide proof of employment in which background checks are part of the hiring process (Exhibit C).  The applicant replied on 16 Oct 19 and provided an FBI report.  According to the report, the applicant has had no arrests since discharge. 

The applicant’s complete response is at Exhibit D. 

APPLICABLE AUTHORITY/GUIDANCE

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 31 Jul 19, Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

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.
AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request to upgrade his character of service to honorable.  On 28 Aug 97, the applicant was discharged under the provisions of AFI 36-3208, Administrative Separation of Airmen, for misconduct with an under honorable conditions (general) service characterization.  He served on active duty for 1 year, 6 months, and 8 days.  The commander provided the discharge authority ample justification to support separation and the character of service.  Based on review of the master of personnel records and the applicant’s request, there is no error or injustice with the discharge process.

The complete advisory opinion is at Exhibit E.

AFPC/DP2SSM recommends denying the applicant’s request to change his RE code.  The applicant was involuntarily discharged with a narrative reason for separation of “Misconduct” on 28 Aug 97 with a general (under honorable conditions) character of service.  Per AFI 36-2606, Reenlistment in the United States Air Force, he was given an erroneous RE code of 2K.  The applicant’s correct RE code should be 2B  based on his involuntary discharge with general character of service.  When his involuntary discharge was approved with a general character of service his RE code should have been changed from 2K to 2B.   Unless otherwise directed by the Board, the applicant’s DD Form 214 will be corrected to reflect the appropriate RE code 2B.

Additionally, the applicant is specifically asking for an RE-1 series code.  However, the only reenlistment eligible RE code an airman can separate with is a 1J. All Airmen selected under the Selective Reenlistment Program and elect separation are given RE code 1J.   RE code 1J would not be appropriate as the applicant was not selected or qualified for reenlistment, but was involuntarily discharged.  All other RE-1 series codes are for airmen currently serving on active duty and specifically state “Do not separate Airmen with this RE code.”

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 5 May 21 for comment (Exhibit G), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.  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 limitation 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.  The Board concurs with the rationale and recommendation of the Air Force offices of primary responsibility and finds 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.  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 limited evidence pertaining to his post service activities, 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-2020-03168 in Executive Session on 22 Jul 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 5 May 19.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clarifying  
                  Guidance), dated 31 Jul 19.
Exhibit D: FBI Report, dated, 16 Oct 19.
Exhibit E:	Advisory Opinion, AFPC/DP2SSR, dated 21 Apr 21.
Exhibit F:	Advisory Opinion, AFPC/DP2SSM, dated 22 Apr 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 5 May 21.

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.