AIR FORCE DISCHARGE  REVIEW BOARD HEARING RECORD

'  NAME •O•F SECRFVICIE MEM,BER (LAST, FIRST MIDDLE INITIAL)

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TYPE  GEN	x	I	PERSONAL    APPEARANCE	I	RECORD   REVIEW

.: ":'i';Q, JtNSEL ··.  NAME OF COUNSEL AND OR ORGANIZATION YES	No
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ADDRESS AND OR ORGANIZATION OF COUNSEL

MEMBER SITTING

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HON	GEN	UOTHC
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DENY

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ISSUES

A94.11 AOl.13 A94.05 A90.07 A90.09

INDEX NUMBER

A67.90

.'j; ;£,,1i· 1	sssvn	»	· ,r. '. ::1::
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 EXHIBITS SUBMITTED AT TIME OF
PERSONAL  APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DATE	CASE NUMBER

23 Apr 2004	FD-2003-00464
·.·.. 1L!Ct;1('.Jl Wl{}l	M1!9	E1	"Til ;&	f; l}9'1' l	O"Jl?P!l IJ! ,., '9. I'. {"1  :1,';;··.:fi·lfi·";
Case heard at Washington, D.C.

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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c	:

TO:

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

FROM:

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-2003-00464	

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

The applicant personally appeared before the Discharge Review Board (DRB) at Andrews AFB MD on April  23, 2004, via VTC  from  Ft. Gillem  GA.   He was represented  by  Mr.	of the Florida Department of Veterans Affairs.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. The applicant submitted the following additional evidence - Exhibit #6: Character Letter from MG, the applicant's father; Exhibit #7: Character Letter from RA.

FINDINGS: The Board grants the requested relief.

ISSUE:

The applicant was discharged with a general service characterization for conduct prejudicial to good order and discipline. He received a single Article 15 for his part in a racially segregated brawl involving approximately 10-15 participants that took place at the NCO club parking lot and for allegedly leaving the installation to avoid law enforcement investigators.

Issue 1. The applicant contends discharge was inequitable because it was too harsh.  The DRB agrees.  The only disciplinary action supporting the applicant's discharge was the single Article 15. The DRB found two problems with this fact.  First, the DRB was uncomfortable with the notion of discharging a member with an adverse service characterization on the basis of a single Article 15. To be sure, it is permissible for the command to take such action, particularly when the action concerns a serious fight.  But in this case, the DRB thought this Article 15 to be insufficient to support the discharge action.  The primary concern in this regard was whether and to what extent the applicant was truly involved in the fight - the file contained no evidence or other information concerning the fight, other than the Article  15.  Second, Article  15 actions are well known to be rehabilitative tools.  There was absolutely no indication the applicant was given an opportunity to avail himself of the rehabilitative opportunity.  Ifdischarge was a possibility given the seriousness of the charges, a summary court-martial (a purely disciplinary tool) followed by the discharge would have been more appropriate.

Issue 2.  The applicant contends that the command acted arbitrarily and capriciously and that there was supervisory mismanagement.   The DRB agrees.  The applicant commented, rather offhandedly in response to a question from a Board member, that his first sergeant told him he would not help him deal with this     issue because there was nothing he could do.  The DRB found the applicant's statement in this regard credible because the response was solicited and because the applicant probably would have had no way to know how the DRB might react to such a comment.  The DRB was disturbed by the prevalence of such an attitude, especially from the first sergeant.  The DRB was also troubled by the lack of documentation supporting the Article 15, the apparent "quick trigger" nature of the case, the failure of the command to use the Article 15 as a rehabilitative tool, and the poor application of disciplinary action.  With regard to the latter, if the fight was so serious that it alone provided a basis for the applicant's discharge (e.g., because the two men were seriously hurt or the applicant started the melee), then the Article 15 was not the appropriate disciplinary action.  On the other hand, if the incident was not serious enough to justify more than an Article 15, then a discharge based on the single event was (as explained above) not appropriate.	

Issue 3.  The applicant contends there was insufficient evidence to support the disciplinary action and discharge.  The DRB agrees.  There was no evidence in the file but for the Article 15 action.  Ordinarily, the presumption of regularity is sufficient to sustain the action.  However, in this case the DRB was unwilling to apply the presumption of regularity because several significant possibilities could not be ignored: the applicant could easily have been fighting in self-defense, the applicant could easily have been misidentified by the other Caucasian participants, or the Caucasian participants may have designed their statements to  place the blame on the applicant (and his cohorts) in an effort to escape culpability for their roles in the fight.

CONCLUSIONS:  The Discharge Review Board concludes that the discharge was not consistent with the procedural and substantive requirements of the discharge regulation.

In view  of the  foregoing  findings  the  Board  concludes that  there  exists  a  legal  and  equitable  basis  for upgrade of discharge.
The applicant's characterization should be changed to honorable under the provisions of Title 10, USC 1553. Attachment:
Examiner's Brief