AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL}

GRADE

AFSN/SSAN

CIC
RECORD  REVIEW
ADDRESS AND OR ORGANIZATION  OF COUNSEL

' ADDITIONAL  EXHIBITS SUBMITTED  AT TIME OF PERSONAL  APPEARANCE

TAPE RECORDING OF PERSONAL APPEARANCE HEARING

x
x

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ISSIJFJS

A94.ll
A94.06 A92.21 A94.55 A92.02

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INDEX NUMBER

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A67.50

COUNSEL'S RELEASE TO THE BOARD

HEARING DATE

CASE NUMBER

18 Feb 2010

FD-2008-00524

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.
>rity

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 20762-7001

AFHQ FORM 0-2077, JAN 00	(EF-V2)	Previous

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2008-00524	

GENERAL:	The  applicant  appeals  for  upgrade  of  discharge  to  honorable,  to  change  the  reason  and authority for the discharge to Secretarial Authority and to change the reenlistment code.
The attached brief contains pertinent data on the applicant and the factors leading to the discharge. The applicant appeared and testified before the Discharge Review Board (DRB), with counsel,
-	of Holland & Hart, LLP, at Andrews AFB on 18 Feb 2010.

FINDING:   The Board grants the upgrade of the discharge.   However, the change of reason and authority for discharge and change of reenlistment code are denied.

ISSUES:

The applicant, through his attorney, identified ten issues that would justify an upgrade of his discharge.  On 13 October 2004, the applicant was disenrolled from the United States Air Force Academy (USAFA) and discharged with a general (under honorable conditions) discharge, with a requirement that he reimburse the United States Government for the cost of his education.

The applicant was discharged for violating Air Force Cadet Wing Instruction (AFCWI) 36-2909, paragraph 2.2.9.1, by engaging in sexual intercourse in the cadet dormitories with two female cadets and for violating AFCWI 36-2909, paragraph 3.7.4.1.3, by having unprofessional relationships with the same two fourth class female cadets while he was a first and second class cadet.

1.	Listed as issues:  I , 5, 6, 7 and 8, the applicant contends that his discharge should be upgraded as a matter of propriety and equity, because it was based upon unlawful command influence and "arbitrary and capricious action."  The applicant states that unlawful command influence contributed to the decision to discharge him; that no one else had been discharged or given a general discharge solely for having sex in the dorms and fraternization, even though the conduct is prevalent; that no one in the Air Force has been discharged and given a general discharge without some form of underlying disciplinary action; and that "almost no one discharged by the Air Force Academy (for any reason) receives a General discharge."  The applicant noted that he was under investigation at the same time that USAFA itself was under investigation for its handling of sexual assault complaints, resulting in the firing of the Superintendent and the Commandant.  The Board considered the applicant's contentions, but did not find any evidence of unlawful command influence.  While "sexual assaults at USAFA" undoubtedly resulted in greater scrutiny on subsequent sexual allegations, the Board did not find any evidence of unlawful command influence or arbitrary or capricious action.

2.	The applicant contends that his discharge should be upgraded as a matter of propriety and equity because it was based upon a denial of fundamental fairness and due process as he was not allowed to call the key witnesses at this disenrollment hearing IAW AFI 36-2020 (Disenrollment of United States Air Force Academy Cadets).  The applicant requested the presence of C4C LB to review her sworn written statements. The hearing officer stated that "no witnesses would be called simply to review statements that we already had."  The applicant did not object to this ruling on the record.  Furthermore, in his response to the Hearing Officer's Report, the applicant's defense counsel did not object to the fact that C4C LB was not present at the hearing.  Despite C4C's absence, the hearing officer did not find that the applicant wrongfully coerced C4C LB into having sexual intercourse.  In addition, the applicant admitted to the four offenses specified above, wrongfully having sex and engaging in unprofessional relationships with two fourth class female	

-

cadets.

3.	The applicant contends that his discharge should be upgraded as a matter of propriety and equity because the Academy was allowed to unreasonably multiply the charges against him. The applicant contended that the offenses of "sexual conduct in the cadet dorm" and "engaging in an unprofessional relationship" were essentially one course of conduct and therefore, should not have been charged separately. The Board found that the offenses could be distinguished. Paragraph 2.2.9.1 prohibits sexual intercourse  in the dormitories and at the Academy, while paragraph 3.7.4.1.3 prohibits sexual relationships between a fourth class cadet and any first, second or third class cadet (an unprofessional relationship).

4.	The applicant contends that his discharge should be upgraded as a matter of propriety and equity because he did not engage in "misconduct as required by 10 USC §2005(a)(3); therefore, his service was honorable. The Board found that a violation of a punitive regulation (AFCWI 36-2909) is "misconduct" as specified in 10 USC §2005(a)(3).

5.	In allegation 9, the applicant contends that his discharge should be upgraded as a matter of equity because of his otherwise exemplary military record. The Board noted that other than the misconduct that formed the basis for his discharge, he had a good GPA and no Article 15s, Letters of Reprimand or UIF, or any other derogatory information. The Board found the applicant willfully violated the AFCWI 36-2909 ( Conduct Standards) on numerous occasions and when another cadet warned him not to engage in such conduct, he did not appear to care and continued to willfully violate the instruction. However, in light of the applicant's otherwise outstanding record, the Board found that while his offenses warranted disenrollment, an honorable discharge is a more appropriate characterization. The applicant did not receive any disciplinary action for the underlying offenses and three of the original seven allegations that formed the basis for the disenrollment were not substantiated by the hearing officer. Therefore, the Board found that as a matter of equity, the applicant's discharge should be upgraded to an honorable discharge.

6.	In allegation 10, the applicant  contends that  his discharge should be upgraded as a matter of equity because of his exemplary record since leaving the Air Force. The applicant had received his undergraduate degree at North Carolina State University and  is pursuing a master's degree while he is employed with General Electric.  The Board positively noted these accomplishments.

CONCLUSION: 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 the applicant was provided full administrative due process. However, in view of the foregoing findings discussed in paragraph five above, the Board concludes that the overall quality of applicant's service is more accurately reflected by an Honorable discharge.

Attachment: Examiner's Brief