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TYPE   GEN	x	I	PERSONAL    APPEARANCE	I	RECORD    REVIEW
COUNEL	NAME OF COUNSEL AND OR ORGANIZATION	ADDRESS AND OR ORGANIZATION OF COUNSEL YES	No
x	VFW

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MEMBER  SITTING	HON	GEN	UOTHC	OTHER	DENY
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ISSUES	A92.35	INDEX NUMBER	A67.90

:	lITS SUBMT t!J? lM\l:r,;, f7 Ft ,,

A02.17	1	ORDER APPOINTING THE BOARD
A92.21	2	APPLICATION  FOR REVIEW OF DISCHARGE
A92.19	3	LETTER OF NOTIFICATION
A94.05	4	BRIEF OF PERSONNEL FILE
A02.13	COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DA TE	CASE NUMBER

31 May 2005	FD-2005-00032

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APPLICANT'S ISSlffi:AN'p '!1ffi l\OARD'S DECISIONAL RATIONAL ARE DISCUSSED ON THE ATTACHED AIR FORCE.DISCHARGE R£VIE\ll BOARD DECISIONAL RATIONALE,, ··,:ii@l < !, : .;.:r .;1,
Case heard at Washington, D.C.

Advise applicant of the decision of the Board and the right to submit an application to the AFBCMR. Names and votes will be made available to the applicant at the applicant's request.

* CHANGE RE CODE

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JJ'I   II	,I	UA IE: b/i1.-.1111:i .
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TO:	t'ROM:
SAF/MRBR	SECRETARY OF TllE AIR FORCE PERSONNEL COUNCIL
AIR FORCE DISCHARGE REVIEW BOARD

550 C STREET WEST, SUITE 40

I5J5 COMMAND  DR. EE WING, JRD FLOOR

RANDOLPH  AFl3, TX 78150-4742	ANDREWS AFB. MD 20762-7002

AFHQ  FORM  0-2077, JAN  00	(EF-V2)	Previous edition will be used

CASE NUMBER
AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	FD-2005-00032

GENERAL: The applicant appeals for upgrade of discharge to honorable and to change the reenlistment code. Through counsel, the applicant clarified that he was not · seeking a change  in  the  reason  or the authority for the discharge despite the fact that his application requested a change in the reason to "convenience to the government."

The applicant appeared and testified before the Discharge Review Board (DRB), with counsel, at Andrews AFB on 31 May 2005.

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

FINDINGS:  Upgrade of discharge and change of reenlistment code are 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:

Issue 1. The applicant cited his desire to return to Air Force employment as a reservist and provide that amount of service necessary to be called an Air Force retiree.  He asked the ORB to consider the two year time period for which he committed his misconduct as an aberration in his character.  Instead, he asked the ORB to look at his true character, as reflected in his pre-service conduct, his prior honorable military service and his post service conduct to provide him an opportunity to once again serve the Air Force.  The DRB recognized the applicant's total conduct and applauded his continued service to the United States as a  civilian employee, but the DRB did not consider the applicant's character as a matter of inequity or impropriety which would warrant an upgrade.  Nor did the ORB believe that the applicant's prior military service or post service conduct lay a basis for other relief.  The ORB determined that the applicant's voluntary and wrongful use of marijuana and his DUI offense, amongst other minor infractions during the enlistment in question, reflected his character at the time and that his service was likewise appropriately characterized.

Issue 2.  The applicant also contended that a number of the infractions citied in his discharge were petty and that his discharge was inequ itable because it was too harsh.  The records indicated the applicant received nonjud icial punishment under Article 15, UCMJ for the wrongful use of marijuana and nonjudicial punishment under Article 15, UCMJ for DUI.  Between these two significant pieces of misconduct, the record reflected five other pieces of misconduct:  uttering checks without sufficient funds, two derelictions of duty, and two failures to go.  (The DRB did not consider an additional failure to go infraction which the applicant's discharge board found was not committed).  The DRB recognized that these other pieces of misconduct were of a minor nature and that the applicant had provided testimony establishing either a defense or further extenuation and mitigation.  While the ORB did discount many of these infractions, the Board concluded, nonetheless, that the applicant's wrongful use of marijuana and DUI represented a significant departure from conduct expected of all military members and that the characterization of the discharge received by the applicant was appropriate.

Issue 3.  Finall y, the applicant raised two matters of impropriety.  He stated that he believed that the composition of his discharge board had been selected to reach a predetermined result.  He said the panel was all white, with a women added as a minori ty.  He further said that his defense counsel appeared to be from a Hind u background and that the two defense witnesses were black.  In support of his contention, the applicant

pointed to the initial discharge board result recommending a UOTHC discharge and the alleged comments of the government's representative subsequent to the board in which he allegedly apologized for the strong comments he made at the board and allegedly said the "brass" wanted the applicant "out" to get even for his earlier retention despite having used marijuana.  The applicant also contended that his defense counsel provided a weak defense.  In the absence of other evidence pointing to actual manipulation of the panel 's composition, the DRB determined that the applicant's assertions were insufficient to clearly raise an impropriety in the board process.  The DRB also concluded that the record, to include the discharge board transcript, reflected that the applicant was provided effective assistance of counsel.

CONCLUSIONS: 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 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