RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00438

xxxxxxxxxxx	COUNSEL: NONE

(AKA) XXXXXXXXXXX 	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

She received a UOTHC discharge while stationed in Germany.  She was questioned at length by the Office of Special Investigation (OSI) investigators about illegal drug activity.  Under duress, she confessed to participating in some illegal activity.  She was never found in possession of any illegal substances and was not searched, detained, arrested, or court-martialed.  She was in a foreign country and was not offered any legal counsel.  She is now seeking an upgrade to her discharge based on clemency.  She has gone back to college and has worked as an educator and social worker and has since retired.  She has served her community with integrity and honor. 

In support of her request for clemency, the applicant provides a personal statement. 

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 31 Jul 80, the applicant’s commander recommended she be discharged from the Air Force, under the provisions of AFM 39-12, Separation for Unsuitability, Misconduct, Resignation, or Request for Discharge for the Good of the Service and Procedures for the Rehabilitation Program, paragraph 2-4b for three counts of possession and selling of a controlled substance, lysergic acid diethylamide (LSD).  

On 30 Oct 80, the Staff Judge Advocate found the discharge action legally sufficient.

On 3 Nov 80, the discharge authority directed the applicant be discharged for misconduct, specifically drug abuse, with a UOTHC service characterization.  Probation and rehabilitation was considered not appropriate.

On 13 Nov 80, the applicant received a UOTHC discharge.  Her narrative reason for separation is “Misconduct-Drug Abuse-Board Waiver” and she was credited with 1 year, 11 months, and 8 days of total active service.

On 8 Mar 82, the applicant submitted a request to the Air Force Discharge Review Board (AFDRB) for an upgrade to her discharge.

On 26 Jul 82, the AFDRB concluded the discharge was consistent with the procedural and substantive requirements of the discharge regulation and 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 17 Feb 22, the Board sent the applicant a request for post-service information and advised the applicant she was required to provide a Federal Bureau of Investigation (FBI) Identity History Summary Check, which would indicate whether or not she 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 21 Mar 22 and provided an FBI report.  According to the report, the applicant has had no arrests since discharge. The applicant also provided a personal statement, certificates and commendations, and evidence pertaining to her employment and community service.

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 17 Feb 22, the Board staff provided the applicant a copy of the clemency guidance based on fundamental fairness (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. 

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.  Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  The applicant has provided no evidence that would lead the Board to believe her service characterization was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. 

Nonetheless, in the interest of justice, the Board considered upgrading the applicant’s discharge.  In support of her request for an upgrade, the applicant has provided an FBI report with no evidence of arrests since her discharge, a personal statement, certificates and commendations, and evidence pertaining to her employment and community service.  She also contends she has gone back to college and has worked as an educator and social worker and has since retired serving her community with integrity and honor. However, the evidence she provides lacks references that demonstrate her character, post-service rehabilitation, or any degree of remorse pertaining to her in-service conduct.  The Board contemplated the many principles included in the Wilke Memo to determine whether to grant relief based on an injustice or fundamental fairness.  Furthermore, the Board considered the applicant’s post-service conduct and achievements, length of time since the misconduct, her character and reputation, service to the community, job history and degree of contrition.  However, given the evidence presented, the Board determined relief is not warranted. 

The applicant retains the right to request reconsideration of this decision, which could be in the form of character statements or testimonials from community leaders/members specifically describing how her efforts in the community have impacted others.  Should the applicant provide documentation pertaining to her post-service accomplishments and activities, this Board would be willing to review the materials for possible reconsideration of her request based on fundamental fairness.  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-2022-00438 in Executive Session on 18 Nov 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 3 Jan 22.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency           
                  Guidance), dated 17 Feb 22.
Exhibit D: Applicant’s Response, w/atchs, dated 21 Mar 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.