RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00393

XXXXXXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO	
 
APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

The United States Air Force never provided evidence that he ever possessed, used, or sold any drugs that would justify his Misconduct-Drug Abuse discharge.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force staff sergeant (E-5).

On 13 Sep 83, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraph 5-49c, for drug abuse.  The specific reason for the action was the applicant’s identification as a drug abuser as evidenced by his conviction in a British Court for possession of cannabis resin on 7 Jun 83. 

On 15 Sep 83, the applicant submitted a conditional waiver of his board entitlement contingent upon his receiving no worse than a general discharge.

On 26 Sep 83, the staff judge advocate found the discharge action legally sufficient.

On 19 Oct 83, the discharge authority directed the applicant be discharged under the provisions of AFR 39-10, chapter 5, section H, paragraph 49c for Misconduct-Drug Abuse, with a general (under honorable conditions) service characterization without the offer of probation and rehabilitation.

On 14 Nov 83, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct-Drug Abuse.”  He was credited with four years, two months, and five days of total active service.

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

POST-SERVICE INFORMATION

On 11 Aug 22, 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 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 11 Aug 22, the Board staff provided the applicant a copy of the clemency guidance (Exhibit E).

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/ DP2STM recommends denying the application.  The applicant’s commander provided the discharge authority ample evidence to support the discharge.  The applicant was convicted in a British Court for possession of cannabis resin on 18 Mar 83.  The discharge authority made careful consideration on the service characterization.  The discharge authority determined that the negative aspect of the applicant’s behavior outweighed any positive aspects of the applicant’s military career.  The discharge authority could have directed a more stringent service characterization but decided upon a general after consideration on the length of the member’s service.  Based on review of the applicant’s request and the master of personnel record, there is no error or injustice with the discharge processing.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Apr 22 for comment (Exhibit D) 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/DP2STM 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, and in the absence of post-service information / criminal history provided by the applicant, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.

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-2022-00393 in Executive Session on 20 Oct 22:

XXXXXXXXX, Panel Chair
XXXXXXXXX, Panel Member
XXXXXXXXX, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 20 Dec 21.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/ DP2STM, dated 6 Apr 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Apr 22.
Exhibit E:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency 
                  Guidance), dated 11 Aug 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.