AIR FORCE DISCHARGE REVIEW HUAK.U HEAKJNl.Y Kl!A.;UKU

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INJTIAl.)

X  PERSONAL APPEARANCE

-GRADE

RECORD REVIEW

NAME OF COUNSEL

AND OR ORGANIZATION

ADDRESS AND OR ORGANIZATION  OF COUNSEL

MEMBERS SITTING
x x x x x

A94.07, A92.07, AOI.15, AOI.43, A92.19, A92.15,
i  A92.25, A 92.37

HEARING DATE
02-11-22

IND£X NUMBER
A67.30

CASE NUMSER
FD2002-0183

.ITS	.TO
1	ORDER APPOINTING THE BOARD
2	APPLICATION FOR REVIEW OF DISCHARGE
3	LEITER OF NOTIFICATION
4	BRIEF OF PERSONNEL flLE
COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF
PERSONAL APPEARANCE

Case heard at Dobbins ARB, GA.

Advise applicant of the decision of the Board.

SAF/MIBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78150-4742

AFHQ FORM 0-2077, JAN 00	(EF-V2)

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL
AIR FORCE DISCHARGE REVIEW BOARD 1535 COMMAND DR, EE WJNG, 31U'J FLOOR ANDREWS AFB, MD 20762-7002
Previous edition will be used.

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD2002-0183	

GENERAL: The applicant appeals for upgrade of discharge to Honorable.

The applicant appeared and testified before the Discharge Review Board (DRB), without counsel at Dobbins AR-A on November 22, 2002. The following witnesses  also testified on the applicant's behalf: Ms.	a co-worker.

The attached brief contains the available pertinent data on the applicant and the factors leading to the discharge.

FINDINGS: Upgrade of discharge is denied.

The Board finds that neither the evidence of record or that provided by the applicant substantiates an inequity or impropriety that would justify a change of discharge.

The applicant's issues are listed in the attached brief.

Issues  1, 2, 5, 6, 7. These issues concern applicant's request for discharge in lieu of court martial, discharge in lieu of administrative discharge, and his app1ication for retirement via AF Form 1160, and will be addressed together.  Applicant contends discharge was improper because the Air Force did not follow it's own regulations.   He contends his retirement requests were not processed in a timely manner thus  precluding his receipt of an honorable discharge, and that he did not receive proper notice of the convening authority's decision to deny retirement.  The records indicated applicant was convicted at general court martial in Jun 93 pursuant to his guilty pleas on various specifications for offenses that occurred from Sep  to Dec 91.  Although sentenced to 4 years' confinement, a large fine, reduction from E-8 to E-1, and complete forfeitures while confined, only the reduction and confinement were approved.  While no punitive discharge was sentenced, about 2 months after the sentence was approved, in Nov 93, applicant's commander began administrative discharge proceedings.   Three months later, in Jan 94, applicant met an administrative discharge board that recommended  he receive an Under Other Than Honorable Conditions (UOTHC) separation.  During the period Jan 94 to Jul 95, applicant's requests for retirement in lieu of trial, in lieu of administrative separation, and for normal retirement were under review by various levels of the chain of command, up to the Secretary of the Air Force's designee, and the Air Force legal community.
The lengthy processing time was due to the judicial appellate process, member' s lengthy service in excess of 22 years, the fact that he was recommended for a UOTHC that required secretarial review and approval, and the legal intricacies and timing of the various actions against member and his requests. All of these factors required detailed and thorough reviews at each level. While this process appears time-consuming, it
was deliberative and fair. During this lengthy process, the only authority to discharge or retire the member	
resided with the Secretary's designee, and all actions would have been held in abeyance pending that decision, which would thus finalize all such actions.  Therefore, any retirement order issued by another agent or assistant during this period would have been without authority and in error, and rescinding such a baseless order was proper.  When the Secretary's designee made the final decision to execute the recommended UOTHC discharge in an instrument dated 1 August  1995, member properly received the required notice of same.

Issues 3, 4, 16, 17.  These issues concern the issuance of an administrative discharge after a court martial has failed to render a punitive discharge, and related matters, and will be addressed together.  Applicant contends it was an abuse of authority for his commander to recommend discharge based on the same information for which he was court-martialed. behavior for which he was not ltiven an opportunity to	

member's senior grade, time in service, and abuse of his position.  As a senior noncommissioned  officer, his duties included leading by example and enforcing Air Force rules and regulations.  Applicant betrayed the trust and confidence his supervisors had in him.  The discharge was based on these factors and was therefore consistent with regulatory authority.

Issues 23 and 24.  This input concerns applicant's post-service conduct and will be addressed together. Applicant notes he has been a good citizen whose rights have been restored by the Florida governor.  He also contends he shouldn't have to continue suffering based on his past mistakes.  The Discharge Review Board recognized applicant's good post-service record and citizenship.  However, this evidence is not relevant to the period of service under review and therefore does not provide a basis for upgrade, and additionally, is insufficient to overcome the factors that were the basis for his discharge.

The Board found the characterization of the discharge received by the applicant was appropriate.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority and that the applicant was provided full administrative due process.

In view of the foregoing findings the board further concludes that there exists no legal or equitable basis for upgrade of the discharge, thus the applicant's discharge should not be changed.

Attachment: Examiner's Brief