RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01349

xxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

His record indicates he was absent without leave (AWOL) which is not true.  He was working a night shift and had a meeting with his commander in the morning and was told by his supervisor he could leave at midnight.  He wants a chance to have a better life, become a law enforcement officer or a firefighter paramedic.  He cannot do either with his type of discharge.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman (E-2).

On 10 Feb 03, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of Air Force Policy Directive (AFPD) 36-32, Military Retirements and Separations and Air Force Instruction (AFI) 36-3208, Administrative Separation of Airmen, paragraph 5.49 for minor disciplinary infractions.  The specific reasons for the action were:

a.  On 16 Mar 01, an AF Form 174, Record of Individual Counseling, indicates the applicant arrived late to work on 12 Mar 01, 13 Mar 01, and 16 Mar 01.  

b.   On 27 Mar 01, an AF Form 174, indicates the applicant arrived late to work.  

c.  On 14 Sep 01, a Letter of Reprimand (LOR) was issued for operating a motor vehicle in a reckless manner.

d.  On 25 Mar 02, a LOR was issued for delinquent credit card payment.

e.  On 21 Oct 02, a Letter of Counseling (LOC) was issued for dereliction of duty.

f.  On 1 Nov 02, a LOR was issued for failure to return to duty.

g.  On 16 Dec 02, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates the applicant received nonjudicial punishment (NJP), Article 15 for dereliction of duty.  He received a reduction in grade to airman (E-2), 21 days of extra duty, and a Reprimand.

h.  On 15 Jan 03, a LOR was issued for dereliction of duty.

On 21 Feb 03, the Staff Judge Advocate found the discharge action legally sufficient.

On 25 Feb 03, the discharge authority directed the applicant be discharged for minor disciplinary infractions and be furnished a general discharge without probation and rehabilitation.  

On 4 Mar 03, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct” and he was credited with 2 years, 7 months, and 15 days of total active service.

On 4 Apr 05, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to his discharge.

On 24 Jan 06, the AFDRB concluded the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and the applicant was provided full administrative due process.  The AFDRB acknowledged the applicant's previous favorable enlisted performance report covering a period between 28 Jun 00 and 18 Mar 02, however, the majority of the Board believed that the totality of the applicant's record did not outweigh the overarching negative aspects of his military service.  The Board concluded that the applicant's collective infractions were a significant departure from conduct expected of all military members and that the characterization of his discharge was appropriate.

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

POST-SERVICE INFORMATION

On 20 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).  On 24 Apr 20, the applicant provided a personal statement, character statements, training certifications and certificates. The applicant replied on 22 Feb 21 and provided an FBI report.  According to the report, the applicant has had no arrests since discharge.  

The applicant’s complete response is at Exhibits D and E.
 
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 14 Apr 22, the Board staff provided the applicant a copy of the clemency guidance (Exhibit H).

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 application finding no error or injustice with the discharge processing.  The commander provided the Base Discharge Authority (BDA) ample documentation to support the discharge and the character of service.  The BDA determined that the negative aspects of the applicant’s conduct clearly outweighed any positive aspects of the applicant’s brief military career.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 23 Feb 22 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 AFPC/DP2SSR and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  In the interest of justice, the Board considered upgrading the discharge based on fundamental fairness; however, given the evidence presented, the Board did not believe the culmination of his post-service conduct outweighed the overarching negative aspects of his military career.  Therefore, the Board recommends against correcting the applicant’s records.

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-2020-01349 in Executive Session on 31 May 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, dated 19 Feb 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request), dated 20 Apr 20.
Exhibit D: Applicant’s Response, w/atchs, dated 24 Apr 20.
Exhibit E:  FBI Report, dated, 22 Feb 21.
Exhibit F:	Advisory Opinion, AFPC/DP2SSR, dated 22 Feb 22.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 23 Feb 22.
Exhibit H: Letter, SAF/MRBC, w/atchs (Clemency Guidance), dated 14 Apr 22.

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.