RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00840

XXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
	
  	HEARING REQUESTED: YES 

APPLICANT’S REQUEST

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

2.	 His narrative reason for separation and separation program designator (SPD) be changed to “Secretarial Authority.”

3.	 His Article 15 be removed.  

4.	 He be granted any other relief that is equitable and just.  

APPLICANT’S CONTENTIONS

Counsel, on behalf of the applicant, states the Article 15 should be removed as he was denied due process.  He did not appeal the Article 15 because he received erroneous advice from his command.    He admitted his wrongdoings, accepted responsibility and received support for retention. He should have been retained in light of the mitigating factors.  The general characterization of his discharge is not equitable in consideration of the minor nature of the misconduct, his overall military service and post-service conduct.  

He admitted to cheating on his test and self-reported his misconduct. He received an Article 15, which was more than sufficient to punish him and deter future transgressions.  The initiation of the administrative discharge was not necessary or equitable given the circumstances.  The incident was a single isolated instance of poor judgment and not indicative of his overall character.  He had no misconduct prior to the incident.  

He was taking a security forces block test when he noticed he missed passing by one correct answer.  He picked up a pencil off the floor, changed an answer and told the instructor that one of his answers was graded incorrectly.  He does not know why those words came out of his mouth and it was a defining moment of his life.  Even under the circumstances, his squadron commander supported his transfer to the Army.  However, shortly thereafter he received notice of his separation.  

The Air Force was going through a reduction in force (RIF) during the time of his discharge.  He instantly became one less body the Air Force had to cut.  He does not know if he would have been discharged under different circumstances.  The memorandum he received from the Secretary of the Air Force (SecAF) also listed a different SPD than the one his DD Form 214, Certificate of Release or Discharge from Active Duty.  He was advised it would be corrected; however, it was never corrected.

In support of his request for clemency, the applicant provides a personal statement to include employment history, letters of support and copies of military kudos and certificates.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force first lieutenant (O-2).  

On 7 Feb 03, the applicant was eliminated from the Air Battle Manager formal training course, with class start date 22 Nov 02, due to academic deficiency.  The applicant was reclassified into the Security Forces career field.

AF Form 3070, Record of Nonjudicial Punishment (NJP), dated 23 Sep 04, shows the applicant received an Article 15 for making a false statement that his test answer sheet was mismarked and erasing an answer after the test with intent to defraud and alter the document.  Punishment included a reprimand and forfeiture of $300 pay per month for two months.  The Article 15 was filed in the applicant’s officer selection record (OSR).  

On 28 Oct 04, the show cause authority notified the applicant of his intent to recommend he be discharged for misconduct.

On 6 Dec 04, the major command judge advocate (JA) informed the applicant the show cause authority considered only his misconduct for the basis of discharge; however, considered his entire record, to include his failure to complete two separate initial training programs, in deciding whether he should be retained in the Air Force.  

On 6 Dec 04, the applicant requested the show cause authority consider his request to be retained in the Air Force or be approved for transfer to the Army under the “Blue to Green” program.    

On 10 Dec 04, the show cause authority informed the applicant he considered the entire record, to include his personnel records, which reflect his failure to complete two separation initial training programs, in deciding whether he should be retained.  

On 13 Jan 05, the Secretary of the Air Force (SecAF) directed the applicant be discharged with a general discharge.  The corresponding Air Force Personnel Center (AFPC) Separations Office email advised the force support squadron (FSS) the SecAF approved the applicant’s general discharge with SPD “GKQ.” 

On 28 Jan 05, the applicant was discharged in the rank of first lieutenant with an under honorable conditions (general) discharge and narrative reason for separation of misconduct with SPD code “BKQ” denoting “Misconduct-Serious Offense.”  

On 25 Aug 20, the Discharge Review Board (DRB) voted unanimously to deny the applicant’s request to upgrade his discharge to honorable, change his narrative reason or separation code.  A review of his record showed he failed out of initial technical training for the Air Battle Manager career field and was reclassified into Security Forces when caught cheating on a test and lying about the incident.  For the misconduct, he received an Article 15.  The DRB concluded the applicant brought discredit to the Air Force.  The misconduct weighed against the overall record of performance warranted the character of discharge he received.  On 8 Sep 20, the DRB results were approved by the board president and the applicant was informed of the decision on 11 Sep 20.  

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

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 (Exhibit D).  The applicant provided an FBI report dated 3 Jun 21, which revealed no prior arrest data at the FBI.   The applicant also provided a resume, character statements, certificates and commendations.  

The applicant’s complete response is at Exhibit E.
 
APPLICABLE AUTHORITY/GUIDANCE

On 25 Jul 18, the Under Secretary of Defense 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, Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit D).

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 denial.  The commander provided ample justification to the Secretary of the Air Force Personnel Council (SAFPC), on behalf of the SecAF, to support separation, the character of service, narrative reason for separation and the corresponding SPD code.  

The complete advisory opinion is at Exhibit F.

DAF/JA recommends denial.  The record contains insufficient evidence or allegation of an error or injustice to undermine the NJP action or imposed punishment.  There is no basis to remove the NJP or upgrade the applicant’s characterization of service to honorable, change his reason for separation, or his separation code.  

The applicant’s commander did not abuse his discretion in administering the NJP or in administratively discharging the applicant with a general discharge.  The punishment imposed was within the permissible range for the offenses. The applicant could have demanded court-martial in lieu of NJP and presented his case and any evidence before a jury of his peers, which he opted against.  

The applicant has not submitted any new evidence or information that casts doubt on the legal sufficiency of the NJP or his administrative discharge.  Counsel alleges the applicant was deprived of the full extent of his due process because he did not appeal the Article 15 after receiving erroneous advice and not seeking counsel prior to making his elections.  However, there is no evidence to support his claim.  Counsel also alleges the misconduct was relatively minor and that it was mitigated because he brought the misconduct to the command’s attention.  The commander could have interpreted that the applicant only admitted to cheating because he had already been caught. Furthermore, the NJP authority’s reprimand is clear the applicant’s misconduct was not minor but especially deplorable given he lied and cheated while training to be an enforcer of the law.

The complete advisory opinion is Exhibit G.  

AFPC/DP2SSM recommends denial.  There is no evidence of an error or injustice.  The commander and supervisor have the authority to issue an Article 15 in accordance with AFI 36-2907, Adverse Administrative Actions.  The standard of proof for adverse administrative actions is the preponderance of the evidence.  This standard is used when evaluating the evidence and elements of the alleged offense.  A preponderance of evidence exists when it is more likely than not the events occurred as alleged.

The complete advisory opinion is at Exhibit H.  

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 27 Jan 22 for comment (Exhibit I), and counsel replied on 1 Feb 22.  It is unclear why the Board needs three advisory opinions in a case that involves a standard request for relief as a matter of justice, fairness and equity.  The advisory opinions from AFPC/DP2SSR and AFPC/DP2SSM contain no discussion of the facts and are not helpful.  The DAF/JA advisory opinions contain some discussion of the facts but gets the elements wrong.  The advisory opinions should be disregarded.  

The applicant’s complete response, with attachments, is at Exhibit J.  

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 DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Counsel argues the advisory opinions should be disregarded and contends the applicant’s due process rights were violated; however, insufficient evidence has been presented to substantiate this to be the case.  Further, no evidence has been presented to show the applicant was treated unjustly, the discharge was disproportionate or that his commander abused his authority.  Counsel also requests relief based on a matter of justice, fairness and equity.  In this respect, the Board considered upgrading the applicant’s general discharge on the basis of clemency and liberal consideration and note the applicant does not have an FBI record and his post-service achievements are respectable.  Nonetheless, the Board finds it does not outweigh the misconduct of cheating on a test while in an officer’s initial skills training course. Counsel also requests the applicant’s SPD code be changed to “Secretarial Authority” on the basis the message approving his separation listed another SPD code; however, the SPD listed on his DD Form 214 appears to be correct and corresponds with the narrative reason for separation.  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-2021-00840 in Executive Session on 17 Feb 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 6 Oct 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:  Discharge Review Board Decisional Documents, 11 Sep 20.  
Exhibit D:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 1 Jun 21.
Exhibit E: FBI Report, dated, 3 Jun 21.
Exhibit F:	Advisory Opinion, AFPC/DP2SSR, dated 9 Jun 21.
Exhibit G: Advisory Opinion, DAF/JA, dated 4 Aug 21.
Exhibit H:	Notification of Advisory, SAF/MRBC to Applicant, dated 27 Jan 22.
Exhibit I:	Counsel’s Response, w/atchs, dated 1 Feb 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.