AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME OF SERVICE M EMBER (LAST, FIRST MIDDLE  INITIAL)	GRADE

AFSN/SSAN

11 a 1 •1111	AIC	7 1•·

TYPE   GEN	x	I	PERSONAL APPEARANCE

I	RECORD  REVIEW

i--_c_o_u_N.;S;.,E.-"L-

--1 NAME OF COUNSEL AND OR ORGANIZATION

ADDRESS AND OR ORGANIZA TJON OF COUNSEL

YES
x

No	:.--------------------- ...
-------------------

.VOTE.OF TlIE Rl\A.?;.·,·?::tt;•. :. :i'· ; . ':,•'.;:;:
1 ------.-	,--"

MEMBER  SITTING	HON
x

------------------------------------------

GEN	UOTHC	OTHER	DENY

x
x
x x

ISSUES	A92.35
A67.50 A92.00 A94.00

INDEX  NUMBER

A61.00 A60.00 A92.02

1	ORDER APPOINTING THE BOARD
2	APPLICATION  FOR REVIEW OF DISCHARGE
3	LETTER OF NOTIFICA TJON
4	BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBM ITTED AT TIME OF
PERSONAL  APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DATE	CASE NUMBER

22 Apr 2004	FD-2003-00408
'

Case heard at Washington, D.C. via video teleconferencing from Fort Gillem, GA.  The board met in Washington, D.C.; the applicant and counsel were present in Fort Gillem, GA.

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

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FROM:

SAF/M RBR
550 C STREET WEST, SUITE 40 RANOOLPH AFB, TX 78150-4742

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-2003-00408	

GENERAL: The applicant appeals for upgrade of discharge to honorable.

The applicant personally appeared before the Discharge Review Board (DRB) at Andrews Air Force Base, Maryland via video teleconferencing from Fort Gillem, Georgia.

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

FINDINGS: Upgrade of discharge to honorable is 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 of discharge.

ISSUE:

The Board concluded the disciplinary infractions were a significant departure from the conduct expected of all military members.

Issue 1. Applicant contends discharge was inequitable because it was predominantly based on an isolated event during a period of otherwise good performance. The applicant was discharged for conduct prejudicial to good order and discipline, or of a nature to bring discredit to the Air Force, citing an aggravated assault, an underage drinking incident, and an assault that was not disclosed on the applicant's Questionnaire for National Security Positions (QNSP). The respondent acknowledges the incident underlying the aggravated assault. He contends that he was first assaulted by a group of men in the parking lot. He fought them off and was able to return to his apartment. When he left his apartment a short time later, the men again
approached him and the respondent, who was now carrying a handgun, fired twice in their direction shooting one of the men in the wrist.  The respondent later pied guilty to misdemeanor assault charges.  With respect  to the underage drinking incident, the applicant contends that he did not drink alcohol while under the age of 21 years, noting the results of an alcohol analysis registering 0.00.  With respect to the QNSP, the applicant claims that he disclosed the assault to the recruiter and that the individual working on his security clearance knew about the assault, questioned him about it, after which he was issued a security clearance.  Completion of the security clearance is reflected in the applicant's records.

Pursuant to section 5H of AFI 36-3208 airmen are subject to discharge when there is one or more act of misconduct during the period of enlistment.  Airmen may be discharged for a single offense for which a punitive discharge is authorized.  Where airmen are discharged for a pattern of misconduct, discharge may not be initiated until airmen have been counseled and given an opportunity for rehabilitation.   Counseling and rehabilitation requirements do not apply to discharges based on the commission of a single serious offense.  Inthis instance, the applicant was discharged for a pattern of misconduct therefore requiring	
counseling and rehabilitation.  No counseling or rehabilitative action was taken for the first cited incident,
involving the failure to disclose information on the QNSP.  The applicant received a LOR for the next incident.  A full year later, the applicant received a LOR for the incident of aggravated assault.  Under these circumstances, these administrative actions are inadequate to satisfy the counseling and rehabilitation requirements.  However, the DRB finds that this deficiency did not result in an inequity because the applicant could have been discharged for the commission of a single serious offense, under paragraph 5.52.

Issue 2.  The applicant states that the discharge was inappropriate because it was based on a pre-service civilian arrest which was later dismissed by the court.  As noted previously, the applicant was subject to	

discharge based on the aggravated assault for the commission of single serious offense. Reference to the applicant's failure to disclose a pre-service civilian arrest did not result in an inequity to the applicant.

Issue 3.  The applicant further contends that the discharge was inappropriate because the discharge was effectuated while the civilian prosecution for aggravated assault was still pending before the court.  There is no requirement that discharge actions be stayed pending disposition of criminal charges, provided there is adequate evidence to support the underlying offense.  Indeed, the Air Force is free to take its own discharge action against an individual based on the facts surrounding the incident.  In this instance the applicant was not discharge based on a civilian conviction.  Instead, he was discharged for shooting a man in the wrist, an act he admitted committing.

Issue 4.  The applicant called attention to his good duty performance and military character, noting that his conduct was not prejudicial to good order and discipline.  The applicant's duty performance, as evidenced by his performance reports and character statements, is excellent and he seems to be continuing that trend as a civilian.  However, the DRB concluded that the incident resulting in the shooting was significant departure from the conduct expected of military members, outweighing the positive aspects of the applicant's military record.

CONCLUSIONS: The Discharge Review Board concludes that despite errors in correctly identifying the basis for discharge, the discharge was nonetheless 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. While the DRB has the authority to change the reason for discharge from a pattern of misconduct for conduct prejudicial to good order and discipline to the commission of a serious offense, this change could negatively affect the applicant.

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