AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)

GRADE

AFSN/SSAN

RECORD REVIEW

ADDRESS AND OR ORGANIZATION  OF COUNSEL

MEMBER SITTING	HON
.'----------------------------------------------- .'	X+

VOTE OF THE BOARD
GEN	I        UOTHC	OTHER

DENY

X+	X

X+

X+	X

ISSUES

A94.11 A93.1S A94.0S A91.03

INDEX NUMBER	A61.00
A60.00	1
2
3

X+	X
EXHIBITS SUBMITTED TO THE BOARil ORDER APPOINTING  THE BOARD APPLICATION  FOR REVIEW OF DISCHARGE LETTER OF NOTI FICATION

4	BRIEF OF PERSONNEL FILE
COUNSEL'S RELEASE TO THE BOARD ADDITIONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARJNG DATE	CASE NUMBER

19 Apr 2004

FD-2002-0467

APPLICANT'S ISS\JE ,\N;p'Tf!E BOARD'SDECISIONAL RATIONAL AJl.Ep!SCUSSED CJN THE ATTACHED AJR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE

Case heard at Washington, D.C., via VTC from Ft Gillem GA.

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

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'

TO:

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

INDORSEMENT

FROM:

DATE: 4121/2004

SECRETARY OF THE 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

FD-2002-0467	

GENERAL: The applicant appeals for upgrade of the discharge to honorable, to change the reason and authority for the discharge, and to change the reenlistment code.

The applicant personally appeared before the Discharge Review Board (DRB) at Andrews AFB MD, via VTC from Fort Gillem GA, on April  19, 2004.   He was represented by Mr.	from the Florida Department of Veterans Affairs. Ms. , the applicant's mother, appeared as a witness.  The applicant submitted one additional exhibit - Exhibit #6: Court Order of Expunction, dtd June 6, 2003.

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

FINDINGS: The applicant's request is granted in part and denied in part. The change of the reason and authority for discharge is granted.  The upgrade of discharge and the change of reenlistment code are denied.

The Board finds that neither the evidence of record nor that provided by the applicant  substantiates  an inequity or impropriety that would justify a change in the character of the discharge or the reenlistment code. However, based upon the record and evidence provided by applicant, the Board finds the applicant's reason and authority for discharge inequitable.

ISSUE:

The applicant was discharged for a pattern of misconduct and for a civilian conviction. During his term of service, the applicant was  given four letters of reprimand (LOR), a record of  individual counseling, and punishment under Article 15, Uniform Code of Military Justice. The misconduct  documented  by each of these disciplinary actions served as the basis for the discharge for a pattern of misconduct. One LOR memorialized the applicant's civilian conviction for aiding and abetting his wife in the theft of merchandise from a local Wal-Mart store. That civilian conviction served as a separate basis for discharge. The applicant submitted an expunction order nullifying the earlier conviction and providing status quo ante relief to the applicant. In effect, it was as if the conviction had not happened. In his testimony before the DRB, the applicant was articulate, affable, and engaging and provided a great deal of information for consideration by the DRB.

Issue 1. The applicant contends discharge was inequitable because it was too harsh.  The DRB disagrees.  The records indicated that the applicant received an Article 15, four LORs, and an RIC, along with three memoranda for record documenting additional instances of misconduct.  Not withstanding the testimony of the applicant, the DRB determined that the misconduct alleged actually occurred.  With regard to the theft of the car part, the DRB was unable to credit the applicant's version of the events.  Like the superiors who disciplined the applicant for this misconduct, the DRB found his explanation (i.e., that he forgot to pay) simply implausible.  With regard to the failure to go to his physical therapy appointment, the DRB again was unable to credit the applicant's version of events in the face of contradictory facts provided by an  uninterested third party.  As for the trip to Mobile, AL, the DRB determined that the notification occurred as
the applicant indicated.  Notification was not, however, the issue; rather, the concern was whether the applicant had permission to leave the local area.  The DRB found it difficult to believe the applicant did not think to check with someone in authority.  Indeed, he noted that it occurred to him to ask the individual who briefed him on the post-9-11 orders, but that he was concerned the briefer would be unsympathetic.  All of this misconduct provides a sufficient basis for a discharge for a pattern of misconduct.  The Board concluded the misconduct was a significant departure from conduct expected of all military members and that through the administrative actions addressing the misconduct, the applicant had ample opportunities to change his	

negative behavior.  The administrative actions and the resulting discharge were appropriate given the applicant's  misconduct.

Issue 2.  The applicant contends that the command acted arbitrarily and capriciously in the administration of the disciplinary actions and the discharge and that there was supervisory mismanagement in his case.  The DRB disagrees.  There are four specific matters the DRB addressed in this regard.  First, the DRB was concerned about the command's apparent attempt to levy correctional custody with an LOR.  Although the LOR was apparently withdrawn, it was disquieting that a commander (and legal office) would have
attempted to commit so obvious a procedural error.  Second, the DRB was concerned the command, on more than one occasion, apparently took administrative action more than once for the same offense.  While such
an action is not improper, it does suggest the command lacked a coherent approach to discipline.  Third, the applicant alleged the disciplinary action was the direct result of an e-mail complaint the applicant sent to the installation commander.  The DRB noted that it was not until after the e-mail was sent that the applicant began to receive disciplinary action for misconduct.  The DRB determined, however, that the applicant's misconduct did, in fact, take place.  Thus, the administrative actions were the natural consequence of the misconduct.  Finally, the DRB was concerned about the "wall-to-wall counseling" publication referenced by the applicant.  While it was unprofessional to circulate such a document in the unit, there was no evidence  the publication contributed in any way to the applicant's disciplinary action and subsequent discharge for the misconduct in which he actually engaged.  In short, none of the aforementioned matters (alone or in the aggregate) amounted to arbitrary or capricious command action or supervisory mismanagement.

Issue 3.  The applicant alleged that he was the victim ofrace and color discrimination.  He claims to have been discriminated against by the white supervisors (race discrimination) and by the dark-skinned black supervisors (color discrimination) in the unit.  Other than the testimony of the applicant, there was no other evidence presented on this issue.  Based on the evidence presented, the DRB found no indication the applicant was the victim of discrimination.

Issue 4. The applicant contends that since his civilian conviction was expunged and nullified, the reason and authority for the discharge based on the civilian conviction cannot stand. The DRB agrees. Discharging a military member for a civilian conviction requires, among other things, a valid conviction. In this case, the conviction was nullified and the applicant treated by the civilian court system as though the criminal conviction never occurred. Since there is, for all intents and purposes, no longer a civilian conviction, a discharge based on that conviction cannot stand. It should be noted that whether the applicant actually engaged in the criminal conduct is a separate matter. Even though the conviction was rescinded, the DRB is not prevented from considering/acts that led to the conviction. However, it was not necessary for the DRB to make a determination regarding the applicant's culpability for the Wal-Mart theft because the other misconduct was sufficient to justify discharge for a pattern of misconduct.

CONCLUSIONS: The Discharge Review Board concludes that the discharge for a civilian conviction is no longer valid and must be removed. The Discharge Review Board concludes further that the discharge for a pattern of misconduct was consistent with the procedural and substantive requirements of the discharge regulation, 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 Discharge  Review Board  concludes that:  1) there exists no legal or equitable basis for an upgrade  of the character of the discharge or a change to the reenlistment  code; and
2) the applicant's reason  for discharge should be changed, under the provisions  of Title  10, USC  1553, to indicate that the sole basis for discharge was a pattern of misconduct.

Attachment: Examiner's Brief