AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

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NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)	GRADE	AFSN/SSAN

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AlC

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YES	No
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I	PERSONAL     APPEARANCE	x	I	RECORD    REVIEW
NAME OF COUNSEL AND OR ORGANIZATION	ADDRESS AND OR ORGANIZATION  OF COUNSEL

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MEMBER SITTING	HON

GEN

UOTHC

OTHER	DENY

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ISSUES	A66.00	INDEX NUMBER	A03.02

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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 TIME OF
PERSONAL APPEARANCE

TAPE RECORDING OF PERSONAL APPEARANCE HE

HEARING DATE	CASE NUMBER

14 Nov 2006	FD-2006-00337
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* No change to RE CODE

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Case heard in 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.

Names and votes will be made available to the applicant at the applicant's request.

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INDORSEMENT	IlATE: 11/1612006
FROM:

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

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL AIR FORCE DISCHARGE REVIEW BOARD
1535 COMMAND DR, EE WING, JRD FLOOR 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 NUMBER

FD-2006-00337	

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

While the applicant had requested and scheduled a personal appearance via Video Teleconference  (VTC) from Travis AFB, California  in front of the Discharge Review Board (DRB), without counsel, sitting at Andrews AFB, Maryland on 14 November 2006, the applicant did not remain in contact with the Board and did not show up at the time set for her VTC, so, by her absence, declined to exercise her right to appear. The case was heard on 14 November 2006 as a non-personal appearance case. No additional exhibits were submitted at the hearing.

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

FINDINGS: The Board finds the applicant submitted issues contesting the equity or propriety  of the discharge, and  after a thorough review of the  record, the  Board agreed, for different reasons than those proffered by the applicant, that her request for an upgrade of discharge was justified.

The Board finds that the evidence of record substantiates an impropriety that justifies  a change of discharge.

The Board grants the requested relief. The discharge is upgraded to honorable. Additionally, the reason and authority for discharge is changed to Expiration of Term of Service, AFI 36-3208, para. 2.2, but change of reenlistment code is denied.

ISSUE:

The Board found that the reason for discharge, the decision to discharge, and the characterization of  discharge were all appropriately dealt with by command.  However, a lack of attention to the applicant's pending ETS by all command and support staff involved in this matter led to the expiration of her ETS prior to final action by the separation authority on the involuntary discharge.  Paragraph 2.1, AFI 36-3208 conveys an absolute right to discharge of an airman upon completion of their enlistment, absent certain exceptions
not applicable to the applicant's case.  Paragraph 2.8 of the same instruction prohibits retaining "airmen beyond ETS involuntarily for completion of involuntary discharge processing."  A thorough review of the applicant's file reveals no authority to retain her beyond her ETS merely to be involuntarily separated.  The applicant's four-year enlistment expired at 2359:59 hours on 27 May 2006; but the separation authority did not act on the involuntary discharge action until 30 May 2006 (and she was not actually separated until
2 June 2006).

Additionally, paragraph 2.8 of the enlisted discharge instruction placed an affirmative duty on command to:
1) give the Airman a chance to voluntarily extend the enlistment for the time needed to complete the case;
2)	tell the Airman that if separation takes place on ETS while the involuntary discharge is pending, the Airman will not be eligible to reenlist;
3)	allow the Airman time to consult military legal counsel before deciding whether to extend the enlistment; and,
4)	separate on ETS, every Airman who declines to extend.

Command's inexplicable failure to comply with para. 2.8 directly led to and compounded the prejudicial error of keeping the applicant on active duty to complete involuntary discharge processing.   Since separation on ETS would have resulted in an honorable characterization, yet she received a general (under honorable	

conditions) discharge, such dereliction and noncompliance with Air Force instructions constitutes prejudicial error, i.e., caused the Board to have substantial doubt that the discharge would have remained the same if the error had not been made. Since she should have been discharged upon ETS, the reason and authority for discharge must be changed to reflect that the reason for discharge was ETS instead of misconduct or drug abuse and that the authority was para. 2.2 instead of 5.54.

CONCLUSIONS: The Discharge Review Board concludes that the applicant's discharge was not consistent with the procedural and substantive requirements of the discharge regulation and that  the discharge authority abused his discretion by denying the applicant full administrative due process.

In view of the foregoing findings the Board further concludes that there exists a legal basis for upgrade of discharge, thus the applicant's discharge should be changed.

The applicant's discharge characterization should be changed to Honorable and the reason and authority changed to Expiration of Term of Service under AFI 36-3208, para. 2.2 under the provisions of Title 10, USC 1553.

Attachment: Examiner's Brief