AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD
NAME  OF SERVICE  MEMBER  (LAST, FIRST MIDDLE  I NITIAL)	GRADE	AFSN/SSAN
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TYPE   GEN	x	I	PERSONAL     APPEARANCE	I	RECORD   REVTEW
COUNSEi.	NAME OF COllNS>:J. ANlJ UR UllGANIZATIUN	ADDRESS  AND 011 URGANll.ATION  OF COllNSEL YES	No
x

MEMBER SITTING	--·-·----·

VOTE OF THE BOARD

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HON	GEN	UOTHC	OTHER	DENY
x x x

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A92.35		I	OR DER APPOI NTING Tl IE BOAR D	
A02. 17		2	APPLICATION FOR REVIEW OF DISCHARGE	
AOl .39		3	LETTER OF NOTIFICATION	
A94.05		4	BRIEF OF PERSONNEL FILE	
A02.21			COUNSEL'S RELEASE TO THE BOARD	
A92.39			ADDITIONAL EXHIBITS SUBMITTED AT TIME Of PERSONAL APPEARANCE	
			TAPE RECORDING OF PERSONAL APPEARANCE HE	

HEAN.ING I>.ATI':	
CASE NUMBER			
03 Apr 2007	FD-2006-00194			

ISSllES	AOI.13	INl>F.X NllMRl'.11	A66.00	EXHIBITS SUBMITTED TO TH E  BOARD

APPJ,JCANT'S ISSUE AND THE BOARD'S DECISIONAL RATIONAi. AK . l>IS("lJSSEI> ON THE AH ACHED AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE

Case heard in 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.

X = Upgrade, Change Reason for Discharge and Change Reenlistment Code

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TO,	FRUM:
SAF/MRBR	SECRETARY OF THE AIR FOllCF, PRSONNEL COUNCii.
Alll   ·u11c lllSCHAllG REVIEW BOARD

550 C STREET WEST, SUITE 40

1535 COMMAND DR, EE WING, JRD FLOOR

RANDOLPH  AFH, TX 781 50-4742	ANDllEWS AFR, Mii 20762-7002

AFHQ I<"ORM 0-2077, .JAN 00	(EF-V2)	Previous edition will be used

CASE NUMBER

FD-2006-00194

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE

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

The applicant appeared and testified before the Discharge Review Board  (DRB) with counsel, at Andrews AFB, Maryland, on 03 April 2007.

The following additional exhibits were submitted at the hearing: Exhibit 5: American Legion Statement
Exhibit 6: Character Letter from SSgt:-------------·:
Exhibit 7: Pennsylvania Driving Reco·a··- --- ----·

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

FINDINGS: Upgrade of discharge, change ofreason and authority for discharge and change ofreenlistment 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:  The applicant submitted the following issues:

Issue 1: The applicant contends that the discharge was improper because it was based on only two offenses of Driving Under the Influence (DUI) for which he received a Letter of Counseling and a Letter of Reprimand for DUL	However, the record reveals that the applicant tested positive in a command-directed urinalysis for cocaine.  Although the results of the urinalysis cannot be used for characterization of the discharge, it is properly used as a basis.  The Board concluded that the significant negative aspects of the conduct outweighed the positive aspects of his military record.  The Board found the characterization for the discharge, reason for discharge, and reenlistment code received by the applicant to be appropriate.

Issue 2 and 3:  The applicant contends the discharge was improper because his right to due process was violated because his commander recommended an honorable discharge and that recommendation was not presented to the administrative discharge board; and that he was convicted outside the due process when the commander decided "that he (applicant) could no longer serve in the unit."

The Board found no basis for impropriety in these issues.  The record ind icates that the applicant req uested a conditional waiver to his administrative board based on the applicant's commander recommendation  for an Honorable characterization.  The Staff Judge Advocate (SJA) recommended disapproval and the waiver was indeed denied by the Wing Commander.  While the government was restricted by regulation from providing evidence of the commander's recommendation to the board, this fact could have been provided by the defense calling the commander as a witness before the board.  As to the applicant's contention that he was convicted outside the due process--the commander's decision, "that he could no longer serve in the unit" is a standard procedure in a case like this and not a predetermination of guilt.  The commander is charged with weighing the potential  safety risks to the applicant and others in his unit against the member's desires and then acting as he/she deems necessary when deciding whether or not the member will be allowed to
continue in his/her primary duties.  The Board found the characterization  for discharge, reason for discharge and the reenlistment code received by the applicant to be appropriate.

Issue 4:  The applicant contends the discharge was improper because the command relied on the testimony of a questionable witness and used that testimony at the board without the witnessing appearing before the board.  The applicant also contends that her testimony was hearsay and it was not investigated for validity prior to his being drug tested.  In the applicant's opinion, the witness' accusations were made as a  "vendetta" of a former girlfriend upset by recent breakup and that he was set up.  Due to the lack of  any compelling evidence supporting this supposition, the Board concluded  that a presumption of regularity was appropriate.  The Board further concluded that the characterization of the discharge, the reason for the discharge, and the reenlistment code identified were appropriate.

Issue 5 and 8:  The applicant contends he was sacrificed to "send a message".  He contends that the commander's recommendation for an Honorable was circumvented by the SJA's recommendation  to disapprove the waiver request in order to "send a message."  The Board found no evidence of impropriety regarding the issues submitted.  The Board opined that the SJA's intent was to prevent the wing commander sending the wrong message, i.e., that an individual convicted of two DUis could still receive an Honorable discharge.  The Board concluded the misconduct of the applicant appropriately characterized his term of service and the reason for the discharge and reenlistment code were also appropriate.

Issue 6 and 7:  The applicant contends that his legal counsel was inadequate and that he was not given adequate time to adjust to the actions and accusations against him.  He also contends that his commander and counsel misled him when they advised him he would receive an Honorable discharge.  In addition, the applicant contends that he should have had access to counsel prior to drug testing.

The Board found no evidence of impropriety with these issues.  The applicant had the right to refuse his counsel's advice and if he felt his counsel inadequate, had the opportunity to find another.  The applicant's submission for a conditional waiver to his discharge board was an option he chose to pursue knowing that if denied, he would still face a discharge board and that he could receive a General discharge.  In a command­ directed urinalysis an individual does not have right to counsel prior to testing; because of this, the results of the testing cannot be used in criminal proceedings or nonjudicial punishment and cannot be used for characterization in the discharge process.  The Board concluded that the characterization, reason for the discharge and reenlistment code were appropriate for the reasons which were the basis for this case.

Issue 9, 10, and 11: The applicant states that he is a mature person and continues to be a dedicated, hard­ working family man and a patriotic citizen who desires to resume service to his country.  He is experiencing limited opportunities for employment due to his discharge and believes his service deserves an honorable recognition characteristic of his performance as documented in his case file.  The Board was sympathetic to the impact of the discharge characterization on the applicant, but it is not a matter of inequity or impropriety which would warrant an upgrade, or change to the reason for the discharge or the reenlistment code.

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, reason for discharge and reenlistment code should not be changed.

Attachment: Examiner's Brief