RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00887

xxxxxxxxxxxxx	COUNSEL: XXXXXXXXXX

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

His discharge under honorable conditions (general) be upgraded to an honorable and his narrative reason for separation and his rentry code be upgraded to reflect the same.

APPLICANT’S CONTENTIONS

His former spouse lied to his leadership about the abuse she sustained by him.  She later recanted her story but his leadership still took action to discharge him.  He soon filed for divorce knowing his relationship was unhealthy and volatile.  Soon after the divorce, he became a police officer and has served honorably ever since.  For post-service information, he submitted his associate’s degree diploma and several letters of reference.

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 20 Jul 06, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of under the provisions of AFPD 36-32, Military Retirements and Separations, and AFI 36-3208, Administrative Separation of Airmen, paragraph 5.50.2. for a pattern of misconduct, conduct prejudicial to good order and discipline.  The specific reasons for the action were as follows:

a.	On 28 Oct 04, Letter of Reprimand (LOR) was issued for spousal abuse.

b.	Dated 3 Feb 05, AF Form 3070, Notification of Intent to Impose Nonjudicial Punishment, applicant received nonjudicial punishment, Article 15 for unlawfully striking his spouse.  He received a reduction in grade to airman basic (E-1) suspended through 9 Aug 05, forfeiture of $100.00 pay per month for 2 months, and restricted to base for 30 days.
 
c.	On 13 May 05, LOR was issued for provoking speeches or gestures.

d.	On 5 Aug 05, LOR was issued for violating a no-contact order.

e.	On 1 Jun 06, the applicant’s spouse provided a statement to law enforcement of abuse.

f.	On 13 Jun 06, Chief of the Family Advocacy Program recommended applicant be discharged.

g.	On 20 Jun 06, Letter of Counseling (LOC) was issued concerning the incident on 1 Jun 06 and the statements made.

On 7 Aug 06, the discharge action was found legally sufficient, and by undated letter, the discharge authority approved the recommendation..

On 8 Sep 06, the applicant received an under honorable conditions (general) discharge. 

On 13 Nov 08, the Air Force Discharge Review Board (AFDRB) considered and denied his request for an upgrade of discharge, change of reason for the discharge, and the change of reenlistment code, finding the discharge was consistent with procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and the applicant was provided full administrative due process.

On 9 Aug 10, the AFDRB reconsidered and denied his request for an upgrade of discharge, change of reason for the discharge, and the change of reenlistment code, finding the discharge was consistent with procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and the applicant was provided full administrative due process.

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

POST-SERVICE INFORMATION

On 6 Apr 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), which the applicant provided on 20 May 21 (Exhibit D).  According to the report, the applicant has had no arrests since his discharge.

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 6 Apr 21, the Board staff provided the applicant a copy of the clarifying guidance (Exhibit C).

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 Jun 17, paragraph 1.18, the types of service characterization are as follows: 

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 is timely.  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 limitations 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, 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-2021-00887 in Executive Session on 14 Jun 21 and 25 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 8 Oct 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Clarifying Guidance to applicant, dated 6 Apr 21.
Exhibit D:	Applicant’s Response, dated 20 May 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.