RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01705

xxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO	

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He was not guilty of the accusation and there was never a hearing or proceedings.  He deeply regrets not fighting the charges against him as he did not have the funds to hire a private attorney.  He was 20 years old and was having difficulty adjusting to military life.  At the time of the infraction, no one explained to him what “betterment of the Air Force” meant and how it would affect his discharge status.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 29 Sep 81, the applicant requested a discharge for the good of the service, indicating he understood, if approved, may result in a UOTHC discharge and that he was advised of his rights and privileges by counsel.

On 7 Oct 81, the applicant’s commander recommended he be discharged from the Air Force, for the good of the service in lieu of a court-martial.  The specific reasons for the action were:

a. On 28 May 80, a Letter of Reprimand (LOR) was issued for failure to go.

b. On 4 Jun 80, AF Form 1611, Notification of Alcohol Abuse Information, indicates the applicant self-identified as a problem drinker and was entered into the alcohol rehabilitation program.

c. On 25 Jun 80, an LOR was issued for failure to maintain dormitory standards.

d. On 29 Sep 80, the applicant was offered assistance through the Social Actions Drug and Alcohol Office for his alleged drug/alcohol abuse.  He declined.

e. On 2 Oct 80, an LOR was issued for failure to go.

f. On 19 Jan 81, an LOR was issued for failure to go.

g. Dated 25 Sep 81, DD Form 458, Charge Sheet, indicates the applicant was charged with one count, two specifications of wrongfully selling/transferring marijuana.

h. On 1 Oct 81, an LOR was issued for failure to go.

On 13 Oct 81, the Staff Judge Advocate found the discharge action legally sufficient.

On 21 Oct 81, the discharge authority directed the applicant be discharged for the good of the service, with a UOTHC service characterization under the provisions of AFM 39-12, Separation for Unsuitability; Misconduct, Personal Abuse of Drugs, Resignation or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, chapter 2, section F.

On 23 Oct 81, the applicant received a UOTHC discharge.  His narrative reason for separation is “Request for Discharge for the Good of the Service” and he was credited with 2 years, 2 months, and 21 days of total active service.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits D and E.

POST-SERVICE INFORMATION

On 19 Oct 21, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

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 19 Oct 21, the Board staff provided the applicant a copy of the fundamental fairness 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.

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.

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request for a discharge upgrade finding no error or injustice with the discharge processing.  The commander provided the Base Separation Authority (BSA) ample justification to support separation and the character of service.  The applicant requested separation in lieu of a potential trial by court martial, which was accepted by the BSA.  

The complete advisory opinion is at Exhibit D.

AFPC/JA recommends denying the applicant’s request for discharge upgrade.   Per AFM 39-12, paragraph 2-86, airmen separated under this provision should normally be separated with a UOTHC service characterization unless particular circumstances warrant an honorable or a general characterization.  In this case, the applicant had been formally charged with two specifications of distribution of illegal drugs to a fellow Airman.  In response to the charges, the applicant elected (with the benefit of counsel) to request to be discharged in lieu of facing court-martial charges.  Given that the applicant was separated over 40 years ago, a review of this case must rely solely on the information contained in the personnel file.  A review of this file, even through the lens of today’s military justice system, would not indicate an error or injustice. Court-martial charges were preferred against the applicant for illegal drug distribution to another Airman.  Additionally, the applicant had several instances of derogatory paperwork prior to the referral of charges.  Given these factors, the applicant would not have been eligible for an honorable service characterization.  Lastly, as was the case in 1981, and is still true today, members approved for discharge in lieu of court-martial generally receive a UOTHC discharge, unless circumstances warrant differently.  A review of the record does not show any mitigating factors that would justify a higher characterization.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 25 Jan 22, for comment (Exhibit F), 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 recommendations of AFPC/DP2SSR and AFPC/JA 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 clemency; however, given the evidence presented and in the absence of post-service information and a criminal history report, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s records.

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-2021-01705 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 16 Apr 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Fundamental Fairness  
                  Guidance), dated 19 Oct 21.
Exhibit D:	Advisory Opinion, AFPC/DP2SSR, dated 27 Dec 21.
Exhibit E:	Advisory Opinion, AFPC/JA, dated 4 Jan 22.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 25 Jan 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.