RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01338

xxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He realized he made mistakes in the service as he was in his early twenties and was going through a divorce at the time.  He learned from his mistakes and became a police officer after his discharge.  He is currently an insurance agent and has been for the last 26 years.  He supports his local community and various charities 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 airman first class (E-3).

On 6 Apr 87, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraph 5-47a for a pattern of misconduct.  The specific reasons for the action were:

	a. On 3 Jul 86, a Letter of Counseling (LOC) was issued for tardiness.
	
	b. On 23 Oct 86 an LOC was issued for tardiness.

	c. On 20 Nov 86, an LOC was issued for tardiness.

d. On 10 Dec 86, a Letter of Reprimand (LOR) was issued for drunk and disorderly conduct.

e. On 20 Mar 87, an LOR was issued for public intoxication and disorderly conduct.

f. On 27 Mar 87, an LOR was issued for a command-directed urinalysis indicating positive cocaine usage.

On 23 Apr 87, the Staff Judge Advocate found the discharge action legally sufficient.

On 28 Apr 87, the discharge authority directed the applicant be discharged for a pattern of misconduct, with a general service characterization.  Probation and rehabilitation was considered, but not offered.

On 4 May 87, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct-Pattern Discreditable Involvement with Military or Civil Authorities” and he was credited with 1 years, 8 months, and 22 days of total active service.

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

POST-SERVICE INFORMATION

On 17 Apr 20, 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 1 Oct 20 and provided an FBI report.  According to the report, the applicant has had no arrests since discharge.  The applicant also provided police department photographs and character reference statements.

The applicant’s complete response is at Exhibit D.
 
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 (Wilke Memo).  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 17 Apr 20, the 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.

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.  Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  The applicant has provided no evidence that would lead the Board to believe his service characterization was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. 

Nonetheless, in the interest of justice, the Board considered upgrading the applicant’s discharge.  In support of his request for an upgrade, the applicant has provided photographs, an FBI report with no evidence of arrests since his discharge, and character statements.  He also contends he supports his local community, charities, and has been a model citizen.  However, the evidence he provides lacks references that demonstrate his character, post-service rehabilitation, service to the community, or any degree of remorse pertaining to his in-service conduct. The Board contemplated the many principles included in the Wilke Memo to determine whether to grant relief based on an injustice or fundamental fairness.  Furthermore, the Board considered the applicant’s post service conduct and achievements, length of time since the misconduct, his character and reputation, service to the community, job history and degree of contrition.  However, given the evidence presented, the Board determined relief is not warranted. 

The applicant retains the right to request reconsideration of this decision, which could be in the form of a personal statement, character statements, or testimonials from community leaders/members specifically describing how his efforts in the community have impacted others.  Should the applicant provide documentation pertaining to his post-service accomplishments and activities, this Board would be willing to review the materials for possible reconsideration of his request based on fundamental fairness.  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-2020-01338 in Executive Session on 21 Jul 22:

, 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/atch, dated 11 Feb 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency  
                  Guidance), dated 17 Apr 20.
Exhibit D: Applicant’s Response, w/atchs, dated 1 Oct 20.

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.