AIR FORCE  DISCHARGE REVIEW  BOARD HEARING RECORD

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)

PERSONAL  APPEARANCE

GRADE

A IC

AFSN/SSAN

RECORD REVIEW

YES	No
x

ADDRESS AND OR ORGANIZATION OF COUNSEL

MEMBER SITTING

HON

GEN	UOTHC

OTHER	DENY
x x x

SSL"ES

AOLSS

INDEX NUMBER

A94.39

X+
x

I	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  EXHIBITS SUBMITTED AT TIME  OF
PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPERANCE

HEARING DATE	CASE NUMBER

27 Jan 2004	FD-2003-00420

Case heard at Washington, D.C.

Advise applicant of the decision of the Board and the right to submit an application to the AFBCMR.		
		
TO:
SAF/MRBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78150-4742	FROM:
SECRETARY OF THE AIR FORCE l'ERSONNEL 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 NL'MBER

FD-2003-00420	

GENERAL: The applicant requests the narrative  reason  cited on his discharge certificate (DD Form 214) be changed from "misconduct" to "convenience of the government." The applicant appeared before the Discharge Review Board (DRB) in person and testified  on his own behalf.   The applicant's father,
and, US Representative	U.S. Congressman,._ Democrat), also testified on the	
applicant's behalf.  In addition to testifying, Congressman	represented the applicant before the DRB. The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.
FINDINGS: The DRB denies the applicant's request to change the narrative  reason cited on his discharge certificate. The Board finds that neither the evidence of record nor that provided by the  applicant substantiates an inequity or impropriety that would justify the requested change to the narrative reason for the applicant's  separation.

BACKGROUND: The applicant was honorably  discharged  for misconduct,  specifically  drug abuse, after he told a mental health worker in Feb 2001 that the previous month he had used cocaine three times. Under these circumstances, the governing instruction permitted  the  applicant's  commander  to  discharge  him  for drug abuse but prohibited him from using evidence derived from his admission for the purpose of characterizing the applicant's service (AF! 36-3208, para 1.21.4.1). There is no other misconduct in the applicant's file which would justify a discharge less favorable than fully honorable. Based on the foregoing, the applicant received an honorable discharge despite his admitted cocaine use. As he was being processed for discharge, the applicant claims his defense counsel and an official from the base education office advised him that the reason for his separation would be "convenience of the government (COG)" instead of misconduct. If he had been discharged for COG and met minimum service requirements,  the  applicant believed he would retain his eligibility for the Montgomery  GI Bill  (MGIB).  Based  on this  erroneous advice, the applicant contributed an additional $600 to enhance the MGIB benefits he expected to receive following his discharge.  The applicant raised the following issues:

Issue I : Based upon the erroneous advice he claims to have received from his defense counsel and the employee from the education office, the applicant believes he is entitled to a change in the narrative reason for his discharge from "misconduct" to "convenience of the government."  Based upon his admitted misconduct, the applicant's commander appropriately initiated separation action for misconduct  (i.e., drug abuse) IAW AF!36-3208, para 5.54.  The applicant is not, and never was, eligible for a separation based upon COG.  When the applicant used cocaine he set in motion a train of events that culminated not only in his discharge but the loss of his eligibility for MGIB.  A COG discharge is appropriate where a discharge for cause is not appropriate and where it is in the best interest of the Air Force to separate the airman.  COG discharges arise where airmen face difficult childcare issues, have insufficient retainability for retraining, or have a condition which interferes with military service (AF! 36-3208, para 5.7).  In this case, discharge for cause was appropriate and none of the other COG related issues are applicable to the applicant's case.  As  the applicant was appropriately separated for his admitted drug use, he is not entitled to a separation based
on COG or the MGIB.  The incorrect advice allegedly provided by the applicant's defense counsel and the education office employee cannot restore an eligibility which he forfeited when he used illegal drugs.  The requirements for the MGIB are set out by statute (38 USC 3011) and the Veterans Administration (VA) administers the program.  As the applicant noted, the VA determined he was not eligible for the MGIB.  His early discharge for misconduct prevented him from completing his initial term of obligated service as required by the statute.  The DRB is sympathetic to the impact the loss of these benefits is having on the applicant, but this is not a matter of inequity or impropriety which would warrant a change in the narrative reason for his separation.	

'

Issue 2: Based on the erroneous advice he received from his defense counsel and the education  office employee, the applicant contributed an additional $600 to enhance the MGIB he expected to receive. The applicant's evidence and testimony show he sincerely believed he would receive the MGIB after he was discharged from the Air Force. The DRB believes the applicant acted upon this sincere but erroneous belief when he paid the additional $600 to enhance his expected MGIB benefit. Although the DRB is without authority to direct a refund of this money, the DRB urges the applicant to seek relief from the Air Force Board for Correction of Military Records (AFBCMR). Assuming the AFBCMR finds an error or injustice, they would have the authority to change  the applicant's military records in such a way  as to authorize a refund of the additional $600 he paid into the MGIB.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and the applicant was provided full administrative due process. In view of the foregoing findings the DRB further concludes that there exists no legal or equitable basis for changing the narrative reason for his separation from "misconduct" to COG.

Attachment: Examiner's Brief