AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME' OF SER1iJCE MEMBER (LAST, FIRST MIDDLE INITIAL)

GRADE

AFSN/SSAN

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vEs	No
x

TSgt
PERSONAL  APPEARANCE	RECORD REVIEW
'	, It	I I •

•. VOTE o.Fir1nt J!OARD .

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MEMBER SITTING

HON	GEN	UOTHC

OTHER	DENY
x x x x
x

ISSUES

A92.22 AOl.39 A94.05 A02.21

INDEX NUMJULR

A73.00

·EXH!BITs SUBMIT'fEDTO TllE BOi(!l.Q
1	ORDER APPOINTING THE BOARD
2	APPLICATION FOR REVIEW OF DISCHARGE
3	LETTER OF NOTIFICATION
4	BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXHJBlTS SUBMlTTED AT TIME OF
PERSONAL APPEARANCE

TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DATE	CASE NUMBER

23 Apr 2004	FD-2003-00306

Case heard at Ft Gillem GA by video teleconference with Andrews AFB, MD.

Advise applicant of the decision of the Board, the right to a personal appearance with/without counsel, and the right to submit an application to the AFBCMR

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DATE: 412712004

TO:

SAFIMRBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78150-4742

f"ROM:

SECRETARY OF THE AIR FORCE l'ERSONNELCO\JNCIL AIR FORCE DlSCHARGE REVIEW BOARD
1535 COJ\-IMAND DR, EE WlNG, 3.RD FLOOR ANDREWS AFB, MD 20762-7002

AFHQ FORM 0-2077, JAN 00

(EF-V2)

Previous edition will be used

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AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUJ\.fBER

FD-2003-00306	

'GENERAL:   The applicant appeals for upgrade of discharge to honorable and to change the narrative
lii iilli ilii if to expiration  of his term  of service.   The applicant  appeared  with  his counsel, Mr.
via video teleconference between Ft Gillem, GA and Andrews AFB, MD on 23 April

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

FINDINGS: Upgrade of discharge and change ofreason and authority for discharge are denied. The Board finds the applicant did not submit sufficient evidence to warrant a change to either the characterization of his service or the narrative reason for separation. 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 of discharge.

FACTS: The records indicate applicant received an Under Other Than Honorable Conditions (UOTHC) discharge. At the time of the discharge, the applicant's commander preferred court-martial  charges against him following a shooting incident involving the applicant and one bis friends. Though there is no dispute the applicant shot his friend, there was some concern about whether the shooting constituted  a criminal offense. The government's evidence suggested the applicant's handling of tbe gun and subsequent shooting was "culpably negligent" and hence a criminal offense. The defense evidence pointed to a lesser degree of negligence which would have been a defense to the crime. At a critical hearing before trial, the military judge ruled he would admit government evidence adverse to the applicant from a civilian police officer and an AFOSI agent at bis trial. Following the bearing, the  applicant discussed his options with bis military lawyer. After meeting with bis lawyer, the applicant elected to offer to resign in lieu of going to trial. He later explained that be offered to resign in order to avoid the possibility of being confined.   Though willing to go to trial, the applicant's commanders recognized that given the state of the evidence neither a conviction nor a separation was assured. For that reason, they recommended acceptance of the  applicant's  offer to resign.  As noted, Air Force authorities accepted bis offer to resign and separated him with a UOTHC.

ISSUES: The applicant claims be is entitled to the relief requested because bis counsel's advice  was inadequate, that his discharge was the product of unlawful command influence, the current service characterization does not accurately describe his service, and that his post-service conduct over the past 10 years warrants an upgrade to an honorable service characterization.

Issue 1. Applicant contends bis discharge was inequitable because his lawyer gave him improper advice. Because the applicant's commanders had reservations about the court-martial's outcome, he  believes his attorney's advice to resign in lieu of trial was inappropriate. The Board disagrees. At the time the applicant submitted his offer to resign, he just learned important evidence he had hoped to  exclude  from his trial would be admitted against him.  The applicant's primary objective at that time was to avoid any possibility of confinement.   Under these circumstances,  his attorney's advice was neither  improper nor inappropriate. In any event, it was the applicant's decision (not his attorney's) to resign rather than risk trying his case before a court-martial.  The DRB found this issue to be without merit.

Issue 2: Applicant contends his discharge was the result of unlawful command influence. The applicant failed to provide credible evidence his commanders unfairly influenced the outcome  of  either his court­ martial case or his discharge. The cases cited in his brief (US v. Thomas, 22 MJ 388 (CMA 1986) and US v. Levite, 25 MJ 334 (CMA 1987)) are not applicable to the applicant's case. The DRB found this issue to be without merit.	

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Issue 3: Applicant contends his UOTHC discharge does not properly reflect the quality of his service during the period under review. At his hearing, the applicant admitted he was under the influence of alcohol at the time of the shooting. Manipulating a handgun in that condition is, at a minimum, reckless conduct. The fact that his friend was seriously injured as a result of the applicant's poor judgment is a significant aggravating factor. The DRB concluded that his actions are significant departure from the conduct expected of an airman and fully warrant a UOTHC characterization.

Issue 4: The applicant contends his post-service conduct merits an upgrade to his service characterization. The DRB was pleased to see that the applicant was doing well and has a good job.  However, no inequity or impropriety in his discharge was suggested or found in the course of the hearing. The Board concluded the misconduct of the applicant appropriately characterized his term of service.

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 discharge, thus the applicant's discharge should not be changed.

Attachment: Examiner's Brief