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ISSUES

AOI.17

INPEX NUMBER

A67.50

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 TIM E OF PERSONAL  APPEARANCE

TAPE RECORDING OF PERSONAL APPEARANCE

HEARING  PATE	CASE NUMBER

21Mar  2006	FD-2005-00433

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.

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

SECRETARY OF THE AIR FORCE PERSONNEL  COUNCIL AIR }"ORCE DISCHARGE REVIEW BOARD
1535 COMMANP PR, EE WING, 31W Fl,OOR ANPREWS AFB, MP 20762-7002

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

AIR FORCE DISCHARGE REVIEW BOARD DEC ISIONAL RATIONALE	CASE NUMBER

FD-2005-00433	

GENERAL:   The applicant  appeals  for upgrade  of discharge to honorable  and  to change the reason  and authority for the discharge.

The  applicant  appeared  and  testified  before  the  Discharge  Review  Board  (DRB),  without  counsel,  at Andrews AFB on 21 Mar 2006.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. FINDINGS:  Upgrade of discharge and change ofreason and authority for discharge 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.

ISSUES: The applicant's issues are listed in the attached brief. The applicant  requests  upgrade  of his discharge contending that his administrative separation was improper because it was wrongful termination of employment that violated his constitutional right against repeat prosecution and punishment for the same offense, i.e., double jeopardy. He further asserts he was denied due process to "confront his accuser" when the N umbered Air Force commander, the Show Cause Authority, did not meet with him in person when processing his administrative discharge.

The applicant was discharged with an under honorable conditions (general) discharge for misconduct after 3 years, 8 months and 5 days on active duty.  A graduate of the Air Force Academy with a degree in aeronautical engineering, he requested and was granted an Exception To Policy by the Chief of Staff of the Air Force for pilot training due to disqualifying excessive refractive error.  While in undergraduate pilot training, he requested and was granted training as a First Assignment Instructor Pilot (FAIP).  He also requested and was granted assignment to Vance AFB as a T-1 FAIP.  While attending instructor pilot training he received a Letter of Reprimand for two incidents of leaving his place of duty and the local area without authority and failure to obey a lawful order.  He was nevertheless allowed to complete instructor pilot training and arrived at his requested assignment at Vance AFB.  Within four weeks of his arrival for Instructor Pilot Duty, the applicant turned in his wings stating he did not want to fly anymore and wanted to be assigned in acquisitions or personnel, or as an engineer (aeronautical engineering degree).  He was removed from the flying schedule and detailed to the Security Forces Squadron as a Security Forces Augmentee, approximately one month after the 9-1 1 terrorist attacks.  His conduct while detailed to the Security Forces Squadron (including reporting late, failing to show for duty, and poor duty performance) prompted the Security Forces Squadron Commander to return the applicant to his permanent squadron and formed the predominant basis for non-judicial punishment by Article 15 for two incidents of failure to go, and one incident of being absent from duty without authority.

The applicant's initial request for Voluntary Disqualification of Aviation Service was denied and he was notified of Flight Evaluation Board proceedings.  In response he submitted a request for Voluntary Disqualification In Lieu of Flying Evaluation Board (VI LO) that was subsequently approved in August 2002.  Simultaneously with his final disqualification for flying based on VILO, he was notified of show cause for administrative discharge for his previous misconduct.  The applicant requested retention in the Air Force and assignment in an engineering career field stating his misconduct was caused by the stress of marital discord which had been resolved.  The applicant's wing commander recommended separation  stating, "While it is true that Lt	possesses skills needed by the Air Force, there is little evidence to su22est that hisfuture  conduct andjudgment  would be dffferent  if.faced with similar stressors.  He has	

demonstrated a lack of reliability, repeatedly poor judgment,  and a conscious willingness to repeatedly disregard rules and procedures  when it meets his needs.  Such conduct demonstrates a lack of character." The DRB noted the applicant's excellent duty performance in a non-flying position following his Article 15 as well as his testimony of post service employment as an aeronautical engineer but concurred with the Wing Commander's assessment.  The Board also noted that the applicant, an avid runner who was on the Academy track team, is also involved in numerous running related community charitable activities.  The Board also acknowledged the applicant's desire to join the Missouri ANG and apparent offer of employment, conditioned upon upgrade of his characterization, but this is not a matter of inequity or impropriety                 substantiating a basis for upgrade.

The applicant's assertion that his discharge was repeat punishment for offenses for which he was previously punished is without merit.  The applicant's main contention is that the Letter of Reprimand and the Article 15 non-judicial punishment constitute being placed in Jeopardy in accordance with Amendment V of the United States Constitution and his subsequent Administrative Discharge for the same acts contained in the Reprimand and Article 15 constitute prohibited Double Jeopardy.  His theory is clearly erroneous as the
Fifth Amendment involves attachment of criminal jeopardy.  A Letter of Reprimand and an Article 15 do not constitute criminal jeopardy nor does the Administrative Discharge.  Since no jeopardy  ever attached, there can be no double jeopardy and his position is without merit.  The applicant's separation from service was the administrative consequence, not punishment, of his previous misconduct.  The applicant's assertion that he was also denied his right to "confront his accuser" is also without merit since his separation was not a criminal court proceeding but rather an administrative procedure that provides no privilege to demand a personal appeal with a Numbered Air Force commander.  The Board notes that voluntary disqualification from flying may alone be cause for administrative separation and that cross training or reassignment to another career field under these circumstances is not assured.  Further, the applicant's pattern of misconduct made such consideration inconsistent with the needs of the Air Force.

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