RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02413

xxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He had a drinking problem while in the Air Force which caused his disciplinary problems.  He was court-martialed for threatening another airman with a knife to which he does not remember as he “blacked out” due to his drinking.  He served five months in the “Brig” which gave him nightmares for years after his release.  His negative discharge has had an adverse effect on his life.  He is gainfully employed, stopped drinking 35 years ago, and has tried to live his life as an honorable man and a good citizen.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 15 Apr 82, the applicant’s commander recommended the applicant be discharged from the Air Force with an under other than honorable conditions (UOTHC) service characterization, under the provisions of AFM 39-12, Enlisted Separation for Unsuitability, paragraph 2-15a for frequent involvement of discreditable nature with military authorities.  The specific reasons for the action were:

a.	Dated 5 Dec 80, AF Form 3070, Notification of Intent to Impose Nonjudicial Punishment, indicates applicant received nonjudicial punishment, Article 15 for disorderly conduct and drunk on duty.  He received a reduction in grade to airman (E-2) and 30 days of correctional custody.

b.	On 26 Feb 81, Phase III Alcohol Evaluation indicates the applicant was interviewed in July 79 for possession of marijuana and entered the Drug Abuse Rehabilitation Program which he completed.  A review of his medical records is negative for any alcohol related problems and the applicant strongly denies any alcohol problems.  The Mental Health Clinic Chief concluded no serious problems with alcohol were detected and recommended an eight-hour Alcohol Awareness Seminar with further involvement in Social Actions Alcohol Rehabilitation Program to be determined by the Rehabilitation Committee.

c.	On 21 Aug 81, a Letter of Reprimand (LOR) was issued for failure to maintain his room to acceptable standards.  Creation of an Unfavorable Information File (UIF) was established.

d.	On 11 Dec 81, the convening authority published Special Court-Martial Order X.  The Order stated the applicant pled guilty to two charges and one specification of making threats and one specification of assault with a dangerous weapon (Article 128 and Article 134).  The applicant was sentenced to a reduction to the grade of airman basic, confined to hard labor for 6 months, and forfeiture of $300.00 pay for 6 months. 

On 4 May 82, the Staff Judge Advocate found the review of a conditional waiver to administratively discharge the applicant, legally sufficient which was further recommended for approval by his commander on 6 May 82.

On 14 May 82, the Staff Judge Advocate found the discharge action legally sufficient.

On 14 May 82, the discharge authority directed the applicant be discharged with a general (under honorable conditions service characterization.  Probation and rehabilitation was not offered.

On 20 May 82, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct-Frequent Involvement of a Discreditable Nature” and he was credited with 3 years, 8 months, and 21 days of total active service.

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

POST-SERVICE INFORMATION

On 20 Oct 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 Mar 21 and provided an FBI report.  According to the report, the applicant has had no arrests since discharge.  The applicant also provided a personal statement and character 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.  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 20 Oct 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.  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 substantial post-service information, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.

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-2020-03555 in Executive Session on 26 Jan 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/atchs, dated 17 Apr 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 20 Oct 20.
Exhibit D: Applicant’s Response, w/atchs in include FBI Report, dated 1 Mar 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.