AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD
NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)	GRADE

SRA

AFSNISSAN

TYPE GEN	X

RECORD REVIEW

YES	No
x

NAJHE OF COUNSEL AND OR ORGANIZATION	ADDRESS  M'D OR ORGANIZATION   OF COUNSEL

MEMBER  SITTING	HON	GEN	UOTHC	OTHER	DENY
x
x
x
x x
--- - - - - ----- - - - - ----- 0------------+-	-=·====c,.,.,==='==···=···3-       ··'-··  TTTTTTI

ISSUES

AOl.13 A94.11

INDEX NUMBER

A67.10

EXli.IBITs Sl)BIVfIJT;E'.D ro111·:ii,11@p' ......· ••
1	ORDER APPOINTING THE BOARD

A94.55

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

11 Mar 2004	FD-2003-00465

Case heard at Washington, D.C.

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

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..
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TO:

SAPIMRBR
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 ).).'ING, JRD FLOOR
ANDREWS AFB, MD 20762-7002

AFHQ FORM 0-2077, JAN 00

(EF-V2)	Previous edition v.rill be used

AIR FORCE DISCHARGE  REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2003-00465	

GENER,\L:  The applicant appeals for upgrade of discharge to honorable.

The applicant personally appeared before the Discharge Review Board (DRB) at Andrews AFB MD on 11 March 2004.  The applicant's father appeared as a witness.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. FINDINGS:  Upgrade of discharge is denied.
The majority  of the  Board  finds that  neither  the  evidence  of record  nor  that  provided  by  the  applicant substantiates an inequity or impropriety to justify a change in the character of the discharge.

ISSUE:

The applicant submitted four issues, of which only three were actually issues upon which relief might be granted. He argues that he did not engage in obstruction of justice as alleged in the July 2002 letter of reprimand (LOR). He also claims that the command acted improperly in its handling of the disciplinary action by discharging him for, among other things, minor instances of misconduct he was told would not be used against him. Finally, he argues that the command's response was overly harsh. The other issue he mentions concerns his desire to obtain the G.I. Bill and the difficulty he may have finding employment. These latter concerns are not issues upon which the DRB can grant relief.

The applicant was punished under Article 15, UCMJ, on two occasions. He operated a vehicle while intoxicated, for which he received a reduction in rank, forfeitures, extra duty, and a reprimand. He also failed to obey lawful general instructions while assigned to Sheppard AFB TX for training. This latter action was not included in the discharge action. He received six records of individual counseling for being absent without leave, failure to go, failure to remain at work, dereliction of duty, and failing a  dorm  room inspection.  He received an LOR for obstruction of justice.

The majority of the DRB found no evidence of impropriety or inequity in this case upon which to base an upgrade of the discharge characterization.

Issue 1. Applicant contends discharge was inequitable because it was too harsh.  The DRB carefully reviewed each of the actions taken against the applicant and the facts surrounding each action.  The DRB	
concluded first that each incident of misconduct did occur.  Indeed, the respondent did not contest any of the allegations but for the obstruction of justice allegation.  The facts indicate he did.  The DRB also determined each disciplinary measure was an appropriate response to the applicant's misconduct.  The DRB opined further that through these administrative actions, the applicant had ample opportunities to change his  negative behavior.  Thus, the characterization of the discharge received by the applicant was appropriate.

Issue 2.  Applicant argues that the obstruction of justice allegation was unfair and should not,have served as the basis for the discharge.  His concern in this regard is well placed as it was this instance of misconduct that apparently triggered the discharge action.  The applicant complains that he was never told not to speak with others connected to the investigation.  Whether the applicant was ordered or told not to speak with anyone about the investigation is immaterial.  The issue is whether he attempted to interfere with a case he knew could result in criminal charges.  He acknowledged speaking with a witness regarding the witness's version of events.  The DRB does not dispute that he applicant was simply trying to get the witness to	

truthfully provide exculpatory facts to law enforcement authorities investigating serious criminal allegations against the applicant.  No matter how well intentioned the interference, it was unlawful for a person to attempt to influence a witnesses testimony in a case that relates to charges against that person.  This is the very essence of the prohibition against obstruction of justice.  The DRB found, therefore, that the misconduct did occur.   Moreover, the DRB found that the resulting disciplinary action was proper.

Issue 3.  Applicant claims the command acted arbitrarily, capriciously, and unfairly when it based the discharge on instances of misconduct he was led to believe would not be used against him.  The DRB found no evidence to support this contention.  The disciplinary actions were appropriately documented in accordance with Air Force policy.  Moreover, the applicant presented no evidence, other than his testimony, that there was an agreement not to resurrect this documentation.  Given the presumption ofregularity, and the absence of evidence to the contrary, the DRB concludes that the command acted appropriately and reasonably.

Issue 3.  The applicant cited his desire to receive the G.I. Bill benefits and to find employment in his chosen career filed as justifications  for upgrade.  The DRB notes that when the applicant applied for the G.I. Bill benefits, he would have signed a statement (DD Form 2366, on September 8, 1994) that he understood he must receive an Honorable discharge to receive future educational entitlements.  The Board was sympathetic to the impact the loss of these benefits was having on the applicant, but this is not a matter of inequity or impropriety which would warrant an upgrade.  The same holds true for the applicant's employment
concerns.  The DRB is sympathetic regarding his concerns, but this is not a basis for an upgrade.

CONCLUSIONS: The maJonty of 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 majority  of 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