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AIR FORCE DISCHARGE  REVIEW BOARD HEARING RECORD
, NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)	GRADE	AFSN/SSAN
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PERSONAL  APPEARANCE	RECORD REVIEW
NAME OF COUNSEL  AND OR  ORGANIZA TlON	ADDRESS AND OR ORGA!'llZA TJOJll OF COt!l\SEJ
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SSUES

A92.21 AOl.39

L'liD.EX NU'.\o'IBER

A67.90

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1	ORDER APPOINTI'N-G'-'T_H,E BOA-"R-"D'	I
2	APPLTCATION FOR REVJEW-OF DJSCHARGE
3	LEITER OF NOTIFJC!>flON'
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4	BRIEF OF PERSONNEL F JL_'E_,  	
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COUNSEL'S RELEASE TO THE BOARD
ADDJTIONAL EXHUllTS sOB_M__r=:-r-E_D_A_T_T_l t=EOF---, PERSONAL APPEARANCE	I'
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HF.ARING  DATE	CASE NUMBER
06 Jan 2004	FD-2003-00337	I

Case heard at Washington, D.C.

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

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CRE.T..A..R....I.A...L...A.U....T...H...O..R..I.T...Y.....................................................	1

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

SECRETAR\' OF THE At:R FORCE PERS01'>NEL {.0Ul'iCIL
AIR FORCE DTSCHARGE  REVIB\'i  BOARD 1535 COMMAND DR. EE \VJNG, .lRD ·LOOR ANDREWS AFB, MD 20762- 7002

AFHQ FORM 0-2077, JAN 00

(EF-V2)

Previous edition \vi tl be used

AIR FORCE DISCHARGE  REVIEW BOARD DECISIONAL RATIONALE	CASE NUl\IBER

FD-2003-00337	

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

The applicant appeared and t estified b efore t he Discharge R eview Board ( D>RF B) w ithMcMoilun s el , ·1;1111:1 ]
--at Andrews AFB, MD, on January 6, 2004.   } p !' 1-Q lfiJ fa his
mother, also testified.

The following additional exhibits were submitted at the hearing:

Exhibit 6:  Character Letter from	====:.d ate1d January 4, 2004 Exhibit 7: Character Letter from ti ff ;llJUI R	§   , undated
The attached brief co_ptains available pertinent data on the applicant and the factors leading to the discharge.

FINDINGS:	Upgrade  of  Discharge  and  change  of reason  and  authority  for  discharge,  and  change  of reenlistment code are denied.

ISSUE:   The applicant received  a general discharge  for a pattern  of misconduct  prejudicial to good order and discipline.  The applicant cited four issues:

Issue 1: The applicant questioned whether there was sufficient proof of his alleged marijuana use to warrant an adverse finding at an Article 15 proceeding.  The applicant received two Article l 5s and neither was for marijuana use.  On 4 Nov 97, the applicant's commander punished him for attempting to possess and distribute marijuana and for soliciting another airrnan to use marijuana.  The evidence supporting this action is well documented.   On 24 Dec 97, the applicant's commander punished him for a series of failures to repair, and did not reference drug abuse of any kind.  Based on the foregoing, the Board found this issue to be without merit.

Issue 2:  The applicant contends that his separation is void because his military defense counsel failed to advise him that a separation action could follow receipt of an Article 15.  At the hearing, the applicant's counsel referenced Tippett v. US, 185 F3d 1250, as additional support for his contention that relief is appropriate in this case.  The Board noted, and the applicant's counsel acknowledged, that the applicant was not immediately separated following receipt of his first Article 15 on 4 Nov 97.  The applicant's commander did not initiate separation action until the applicant received his second Article 15.  At that time, the applicant's record included not only two Article 15s but also a well-documented  history of failing to repair, failing to complete his training, not following orders, and lying to his supervisor.  The Board did not find Tippet applicable to the applicant's case.  Unlike Tippet, there is no evidence the applicant's military defense counsel misadvised the applicant.  Based on the foregoing, the Board found this issue to be without merit.

Issue 3:  The applicant believes his post-service activities warrant clemency.  The Board noted that its clemency powers are limited to those cases where an applicant has been discharged or dismissed from the service by reason of a court-martial (10 USC 1553).  As the applicant was separated pursuant to an administrative action, the Board is without authority to grant the relief requested on this basis.

Issue 4:  The applicant contends the 24 Dec 97 Article 15 is not justified  and may not have created a "pattern of misconduct."  The Board found the evidence supporting this Article 15 to be sufficient to support the action.  The Board also noted the applicant's record contains evidence of substantial misconduct.  Even if the	

..

24 Dec 97 Article  15 is not considered, the additional misconduct in the applicant's record is sufficient to confirm the existence of the "pattern of misconduct" and also to meet the criteria of a general discharge characterization as required by the governing instruction.  Based on the foregoing, the Board found this issue to be without merit.

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