AIR FORCE DISCHARGE REVIEW BOARD HEARING  RECORD

NAME OF SERVICE MEMBER  (l,AST, FIRST MIDDLE INITIAL)	GRADE	AFSN/SSAN

X  PERSONAL APPEARANCE	RECORD  REVIEW
, NAME OF COUNSEL AND OR ORGANUATION	ADDRESS AND OR ORGANUATION OF COUNSEL
Yfi:S	NO
x
r---- -	----------- ----- --· ------- r-------- vo=T=E'"o""'"' TuE=B=oA R=n-----------j

MEMBERS SITTING

HON	GEN

X +* X +* X +*
x
X +*

UOTHC

OTHER

DENY

ISSUES
AOl.14, 28.00, 93.02, 93.22,

EXHIBITS SUBMITfKD TO THE BOARD
ORDER APPOINTING THE BOARD

93.34, 94.02, 94.06, 94.12	2	APPLICATION FOR REVIEW OF DISCHARGE
3	LETTER OF NOTIFICATION

HEARING DATE
6 MAR 03

CASE NUMBER
FD2002-02228

4		BRIEF or PERSONNEL  FILE COUNSEL'S  R ELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT  TIME OF PERSONAL APPEARANCE

TAPE RECORDING OF PERSONAL APPERANCE HEARING
APPLICANT'S ISSUE AND TI-IE BOARD'S DECISIONAL RATIONAL ARE DISCUSSED ON THE ATTACHED AIR FORCE DISCHARGE REVIEW BOARD Dl'CISIONAL RATlONALE.

JU:MARKS

Case hea rd at Washington, DC.

+ Change RE Code
* Change Reason and Authroity for d ischarge Advise applicant of the decision of the Boa rd.

DATE:  7 MAR 03

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

SECRETARY  OF TH E AIR FORCE  PERSONNEL  COUNCIL AIR FORCE  DISCHARGE  REVIEW BOARD
1535 COMMAND DR, EE WING, 3RD  FLOOR ANDREWS  AFB, MD 20762-7002

AFHQ  FORM  0-2077, JAN  00	(EF-V2)	Previous edition will be used.

AIR FORCE DISCHARGE  REVIEW BOARD DECISIONAL  RATIONALE	CASE NUMBER

FD2002-0228	
GENERAL: The applicant appeals for upgrade of discharge to honorable and for a change in the RE Code and the Reason and Authority for discharge.

The applicant's case was considered by the Discharge Review Board (DRB), at Andrews AFB, MD, on March 6, 2003. The applicant appeared before the DRB but did not have counsel . . the applicant's father, also appeared and testified on behalf of the applicant.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. FINDINGS: The DRB grants the requested relief.
The DRB finds that the evidence ofrecord and that provided by the applicant substanti ates an inequity and an impropriety that would justify an upgrade of the discharge.

ISSUES: The applicant was discharged with a general service characterization from the Air Force for misconduct or more specifically, conduct prejudicial to good order and discipline. He had a letter of reprimand (LOR) for possessing alcohol as a minor (he was prosecuted by civilian authorities), an LOR for failing a room inspection, a record of individual counseling (RIC) for failing to obey an order to study his technical orders (TOs), an Article 15 for leaving his duty section without permission and for a false official statement related to his departure, and an Article 15 for failure to go for being over an hour late to work. Shortly after arriving at his duty station (2 months), the applicant injured his back severely enough to be placed on profile for over a year. The injury was so severe, there were discussions concerning a medical evaluation board for the applicant. As a result of his injuries, he was unable to perform his maintenance duties and was required to perform light duty instead.

CONCLUSIONS: The DRB concludes that the discharge was not consistent with the substantive and procedural requirements of the discharge regulation and was an abuse of discretion by the discharge authority.

It appeared to the DRB that the applicant was unjustly and inequitably treated by the leadership of his unit. From the beginning of his testimony, the applicant acknowledged responsibility for his misconduct. Therefore, there was no doubt as to the applicant's actions. Indeed, he noted that his discharge was ultimately his own doing because had he not engaged in the misconduct, he would not have been subject to disciplinary actions. He felt, rather, he had not been given a chance to prove he could be a contributing member of the unit and the Air Force. In that regard, he was seeking what amounted to a second chance. However, without an inequity or impropriety, the discharge would stand and the applicant would not be given another opportunity to serve. The focus, then, turned to the actions of his superiors. The ORB concluded that the applicant's superiors were taking disciplinary action out of proportion to the misconduct	
and were taking disciplinary action in the absence of misconduct.  For example, the DRB felt the LOR for
the applicant's first failed room inspection was excessive. The RIC for failure to obey an order was inappropriate because the evidence indicated that under the circumstances, the applicant did not actually fail to obey an order - the DRB was not convinced the direction to read the TOs was understood to have been an order or even that it could properly be considered an order. The evidence indicated that the Article 15 for leaving work without permission and for false statement appeared to be based on a misunderstanding rather than an intent to deceive. The genesis for the unit's reaction to the applicant's behavior appears to have been the back injury. The applicant's superiors were simply reacting to what they perceived as a malingering airman. The applicant was thought to be an airman who was not pulling his weight and who was more interested in avoiding work than doing work.  In that way, the applicant was prejudiced by the	

back injury.  When viewed in that context, the harsh reactions to the applicant's behavior and the apparent unwillingness  of the unit to work with the applicant make sense.   Moreover, the exaggerated response to some of the applicant's behavior caused other incidents to take on even greater significance.   For example, an  Article  15 is not  the typical  response  for a first-time  failure to go.	Likewise,  while  an LOR  is an appropriate  response  to  a  civilian  arrest  for  drinking  under  age,  this  behavior  is  so  common  and  the circumstances of the accused 's violation were so benign that this misconduct would not have served as a I basis for discharge.   In the end, all of this led to the inequitable treatment of the applicant and impropriety in the administration of the disciplinary actions.

The applicant's presentation and demeanor convinced the DRB he deserved a second chance to contribute to the Air Force and serve his country.  At one point, the appl icant stated, "If I get my chance to go back in, I will give my 200 percent and I can assure you of that." The DRB is taking the applicant at his word and will grant the opportunity for him to give his 200 percent.

Having found inequity and impropriety, the DRB grants the requested relief and orders the characterization of service to be upgraded to honorable, that the reason and authority for discharge be changed to Secretarial Authority, and that the RE Code be changed to 3K.

Attachment: Examiner's Brief