AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)	GRADE

AFSN/SSAN

-	I	Hmlll
X  PERSONAL APPEARANCE	RECORD  REVIEW
NAME OF COUNSEL AND OR ORGANIZATION	ADDRESS AND OR ORGANIZATION OF COUNSEL

MEMBERS SITTING
x
x x x x

A94.06	A67.00

2	APPLICATION FOR REVIEW OF DISCHARGE
3	LEITER OF NOTIFICATION

HEARING DATE
5 JUN 03

CASE NUMBER
FD2002-0386

4		BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDIDONAL EXHIBITS SUBMITI'ED AT TIME OF PERSONAL APPEARANCE

Case heard at Scott AFB, Illinois.

Advise applicant of the decision of the Board and the right to submitt an application to the AFBCMR.

TO:

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

SECRETARY OF THE AIR FORCE PERSONNEL COUNCJL AlR FORCE DISCHARGE REVIEW BOARD
1535 COMMAND DR, EE WING, 311D 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

FD2002-0386	

GENERAL: The applicant appeals for upgrade of discharge to Honorable, a change in the Reason and Authority for the discharge, and to the RE Code.

The applicant appeared and testified before the Discharge Review Board (DRB), without counsel, at Scott AFB, IL on June 5, 2003. The following additional exhibits were submitted at the hearing:
Exhibit 5: Applicant's contentions.
Exhibit 6: Certificate of Appreciation from the Disabled American Veterans Exhibit 7: Disabled American Veterans membership card
Exhibit 8: QWest Communications business card
The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FINDINGS: Upgrade of discharge to General is granted, but upgrade of the discharge to Honorable, the change to the Reason and Authority for the discharge, and the change to the RE Code is denied.

The Board finds that the evidence of record and that provided by the applicant substantiates both an inequity and an impropriety that would justify upgrade of the discharge.

ISSUES: The applicant was discharged with an Under Other Than Honorable Conditions Discharge for Misconduct - Discreditable Involvement with Military or Civil Authorities. Member received three Article l 5s, all of which were related in some way to driving while under the influence of alcohol. The first Article 15 was for driving while intoxicated. The second was for driving while intoxicated and for leaving the scene of an accident, stemming from an incident in which the applicant hit the gate on his way off the base. The third Article 15 involved a failure to obey the commander's order not to drive on the installation, an order given to the applicant after his most recent driving while intoxicated infraction. Later, he received a letter of reprimand for driving while intoxicated, which ended with an arrest by civilian authorities and payment of a fine. The incident of misconduct that precipitated his discharge was a violation of a lawful general regulation when he compromised testing material by sharing the test answers with another enlisted member who was scheduled to take the exam. For this, he received a special court-martial conviction and a sentence that included confinement, forfeitures, and reduction in rank but not a punitive separation. After being notified of his discharge action, he submitted a conditional waiver for a general characterization. His commander and the installation legal office both recommended acceptance of the general characterization. The separation authority, however, approved the UOTHC. The applicant raised essentially one issue; that he was incorrectly denied a General  service characterization after being led to believe he would be receiving such a characterization.

CONCLUSIONS: The DRB concludes that the issue raised by the applicant has merit. Further, the DRB concluded that the discharge was not consistent with the procedural or substantive requirements of the discharge regulation, was not within the discretion of the discharge authority, and that the applicant was not provided full administrative due process. Under Air Force regulations if the separation authority does not accept a conditional waiver of the discharge board, he can either return the case to the installation to be heard by a discharge board or can request and unconditional waiver of the board. In this case, the separation authority discharged the applicant with a UOTHC rather than the General characterization the applicant's waiver was conditioned upon. He failed to return the file to the base for a hearing or to demand an unconditional waiver. This was error. This procedural impropriety justifies an upgrade of the discharge to General.

While this result was required as a matter of law, the DRB also found that the discharge should be upgraded	

as a matter of equity. 'The DRB was impressed with the applicant, his forthright testimony, and his accomplishments since leaving the service. This admirable post-service conduct enabled the DRB to more thoroughly review that facts and circumstances surrounding the misconduct related to the test compromise. Test compromise offenses are considered to be among the most contemptuous of integrity violations in the Air Force, representing the height of dishonor. The applicant's case did not, in the estimation of the DRB, represent such an integrity violation. The applicant did not attempt to profit or in some other way benefit from revelation of the test answers. Rather, it is undisputed the applicant provided the answers to his friend because he was attempting to help his friend overcome his personal burdens (by increasing his chance for promotion). While the applicant's good intentions do not negate the offense or eliminate the violation of integrity, it does tend to mitigate the wrongdoing, thereby decreasing the magnitude of the violation of integrity. In addition, at the hearing the applicant was honest about his misconduct and about his life after discharge from the service. His attempt to reconstruct his life, his decision to reveal his past to his oldest son in an effort to help him learn from his father's mistakes, and his desire to lead an honorable life all suggested to the ORB that a UOTHC characterization was not appropriate. All of this also demonstrated to the panel that the applicant's lost honor has been regained. In that regard, a General (under honorable conditions) characterization is the most appropriate description of the applicant's service and his contribution to the country.

Having found an inequity and an impropriety, the DRB partially approves the  request for an upgrade, concluding that the overall quality of appJicant's service is more accurately reflected by a General discharge. The applicant's characterization for discharge should be changed to General under  the provisions of Title 10, USC  1553.

Attachment: Examiner's Brief