RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00989

XXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO 
 
APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

The actions and discharge at the time were not consistent with today’s law.  He is sorry for the bad decisions he made.  He is 63 years old and it is the most regretted issue in his life.  The evaluation officer recommended probation and rehabilitation. 

In support of his request for clemency, the applicant provides copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, a judge advocate memo, an evaluation officer memo, a letter of recommendation, personal statement, three character reference letters, an area defense counsel letter, certificates of training and his DD Form 257AF, General Discharge Certificate.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

The applicant’s military personnel records are not available.  According to the evaluation officer memo provided by the applicant, dated 18 Apr 80, the applicant’s commander recommended he be discharged from the Air Force, under the provisions of AFM 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program.  The specific reasons for the action were:

a.	The primary basis for his discharge action is drug involvement.  On 8 Feb 80, the applicant was found guilty by a special court-martial of one specification of transfer of approximately 20 grams of marijuana.  For this misconduct, the applicant was sentenced to confinement at hard labor for 2 months and forfeiture of $200.00 pay per month for 2 months.
	
b.	On 7 Oct 78 and, on 18 Nov 78, he was cited for speeding.  For this punishment, the applicant’s driving privileges were suspended for six months.
 
c.	On 14 Mar 79, the applicant failed to go to his appointed place of duty.  For this misconduct, the applicant received a Letter of Reprimand.

On 25 Apr 80, according to a staff judge advocate (SJA) memo, provided by the applicant, the discharge action was found legally sufficient.

On 28 Apr 80, according to the discharge memo, provided by the applicant, the discharge authority directed the applicant be discharged for Drug Abuse, with a general (under honorable conditions) service characterization.  Probation and rehabilitation was denied.

On 29 Apr 80, according to the DD Form 214, provided by the applicant, he received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct – Drug Abuse” and he was credited with two years, one month, and five days of total active service.  In addition, he received a DD Form 257AF, General Discharge Certificate.

For more information, see the excerpt of the applicant’s record at Exhibit A.
 
POST-SERVICE INFORMATION

On 1 Jun 21, 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 B).  Based on the foregoing, the applicant’s application was closed.  On 23 Jun 21, the applicant provided an FBI report dated 7 Jun 21.  According to the report, the applicant has had no arrests since discharge. (Exhibit C).  The applicant also submitted another DD Form 149 with the same attachments and included a memo from the discharge authority dated 28 Apr 80 (Exhibit A). 

APPLICABLE AUTHORITY/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 1 Jun 21, the Board staff provided the applicant a copy of the supplemental guidance (Exhibit B).

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.

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 notes the applicant’s military personnel records are not available for review.  Therefore, all the facts surrounding his separation and character of service could not be verified.  However, based on the presumption of regularity in the conduct of governmental affairs, absent evidence to the contrary, the Board must assume the applicant’s discharge, to include his service characterization, were proper and in compliance with the directive under which it was effected.  The applicant has not provided sufficient evidence which would lead the Board 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, 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 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-2020-00989 in Executive Session on 21 Mar 22.

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Forms 149, w/atchs, not dated.
Exhibit B:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency 
                  Guidance), dated 1 Jun 21.
Exhibit C: FBI Report, dated 7 Jun 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.