RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00139

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He was involved in an incident and hearsay evidence was used against him. When questioned about the incident, he told the investigator he was at a party where marijuana was smoked but never said he personally smoked at the party.  The investigator told the Office of Special Investigations (OSI) that he admitted to smoking at the party.  He believes because he admitted smoking marijuana prior to his enlistment in the Air Force it was used against him, and he did not receive a fair trial.  He had a distinguished career, with numerous awards, and although he had a few character issues in his 11-year career he served honorably, and his discharge should be upgraded. 

He states since discharge he has gone to school, started his own business and has been a model citizen.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force senior airman (E-4).

On 17 Jan 97, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFI 36-3208, Administrative Separation of Airmen.  The specific reason for the action is:

From on or about 1 Jun 96 to on or about 31 Aug 96, the applicant wrongfully used marijuana in the presence of, and in concert with other military members, in violation of the Uniform Code of Military Justice (UCMJ), Article 112a, as evidenced by AF Form 3070, Record of Nonjudicial Punishment Proceedings dated 3 Jan 97.
	
On 21 Mar 97, the Staff Judge Advocate found the discharge action legally sufficient.

On 24 Mar 97, the discharge authority directed the applicant be discharged for Drug Abuse, with an UOTHC discharge service characterization.  

On 28 Mar 97, the applicant received an UOTHC discharge.  His narrative reason for separation is “Misconduct” and he was credited with 10 years, 3 months, and 17 days of total active service.

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

POST-SERVICE INFORMATION

On 27 May 20, the Board sent the applicant a request for post-service information (Exhibit C) 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.  The applicant replied on 23 Mar 21 and provided an FBI report (Exhibit D).  According to the report, the applicant has had no arrests since discharge.  However, the applicant did not provide any other information regarding his post-service activities.  

APPLICABLE GUIDANCE

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) 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 27 May 20, the Board staff provided the applicant a copy of the clemency guidance (Exhibit C).

APPLICABLE AUTHORITY/GUIDANCE

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.

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 trail 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 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.  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, and in the absence of post-service information, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.  Should applicant provide information regarding his post-service accomplishments, the Board would be willing to reconsider his request.  

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2020-00139 in Executive Session on 18 Aug 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, dated 15 Nov 19.
Exhibit B:  Documentary Evidence, including relevant excerpts from official records.

Exhibit C:  Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency Guidance), dated 
                  27 May 20.
Exhibit D: FBI Report, dated, 22 Feb 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.