..NAM.E O.F S.ERV.ICE.ME.l\IBER (LAST, FIRST MIDDLE INITIAL)

GRADE	AFSN/SSAN

AIR FORCE DISCHARGE REVIEW BOARD HEARING  RECORD

TYPE UOTH

PERSONAL  APPEARANCE

AlC	
x	RECORD  REVIEW

YES	No
x

NAME OF COUNSEL AND OR ORGANIZATJON	ADDRESS  AND OR  ORGA!l."IZATION OF COUNSEL

MEMBER SITTING

HON	GEN
x x x x x

UOTHC

OTHER	DENY

ISSUES

AOI.04 AOI.02

L'lDEX NUMBER

A66.00

AOl.08	2 1  APPLICATION FOR REVIEW OF DISCHARGE
3	LETTER OF NOTlFICA TION
4	BRIEF OF PERSONNEL FILE COUNSEVS RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL  APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DATE	CASE NUMBER

14 Dec 2004

FD-2004-00291

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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SAF/MRBR
550 C STREET WES RANDOLPH AFB,

SECRETARY OF THE AlR FORCE PERSONNEL COUNCIL AIR FORCE DISCHARGE REVIEW BOARD
t5J5 COMMAND DR, EE WING, 3RD FWOR
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 NUl\1BER

FD-2004-00291	

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

The applicant was offered a personal appearance before the Discharge Review Board (DRB) but declined to exercise this right.

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

FINDINGS:  The discharge is upgraded to general.

The Board finds the applicant submitted no issues  contesting the equity or propriety  of the discharge, but after a thorough review of the record, the Board identified an impropriety as detailed below.

ISSUE:  Applicant was discharged under other than honorable conditions (UOTHC) for drug abuse after a random urinalysis returned positive for methamphetamine  at the 3576 nglml level compared to the DoD cut­ off of 500 ng/ml.  In contemplation of court martial, member entered a Stipulation of Fact that he knew he had wrongfully used a contrabapd drug substance and felt its physical effects.  He made an Offer for Alternative Disposition to plead guilty to the offense and accept trial by Summary Court Martial, as well as unconditionally waive his right to a discharge board hearing if his commander recommended he be separated UOTHC, while recognizing his commander did intend to recommend  administrative separation upon conclusion of the court martial proceedings.  Applicant's commander did in fact recommend he be separated UOTHC, and every level of review concurred.  Additionally, at the time of discharge processing, applicant preserved his right to submit matters in his own behalf, and did so, requesting he be given a general (under honorable  conditions) discharge.

During its records review, the Board discovered an impropriety. In accordance with Air Force Instruction 36-3208, "Administrative Separation of Airmen," airmen cannot be discharged UOTHC if the sole basis for discharge is a serious offense that resulted in conviction by court martial that did not adjudge a punitive
discharge, unless such characterization of service is approved by the Secretary of the Air Force (SECAF).  In this case, the court martial convening authority, upon the recommendation of member's commander, and in consonance with the legal reviews, directed a UOTHC discharge be executed without elevating the matter to the SECAF as required.  Although a punitive discharge is not available through a Summary Court  proceeding, AFI 36-3208 makes no distinction between what type of court martial convicted the separating member, or it's sentencing limitations.  It simply states that if convicted by court martial without a punitive discharge, a UOTHC discharge is not authorized unless approved by SECAF.  That did not happen in this case, therefore the Board determined member's discharge should be upgrade to general (under honorable conditions).

CONCLUSIONS: The Discharge Review Board concludes that although the discharge was within the discretion of the discharge authority, it was not consistent with procedural and substantive requirements of the discharge regulation and the applicant was not provided full administrative due process.

In view of the foregoing findings the Board further concludes the discharge should be upgraded to general (under honorable conditions) under the provisions of Title 10 USC, Section 1553.

Attachment: Examiner's Brief