AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00583	
					
SUMMARY: 

The applicant was discharged on 12 May 2016 in accordance with AFI 36-3208 with a General Discharge for Misconduct (Serious Offense). The applicant appealed for an upgrade of his discharge characterization.  The Board was conducted 27 January 2022.

The applicant was represented by counsel.    

The applicant requested the board be completed based on a records-only review.

The attached examiner’s brief (provided to applicant only), extracted from available service records, contains pertinent data regarding the circumstances and character of the applicant’s military service. 

DISCUSSION:  The DRB, under its responsibility to examine the propriety and equity of an applicant’s discharge, is authorized to change the characterization of service and the narrative reason for discharge if such changes are warranted.  If applicable, the board can also change the applicant’s reenlistment eligibility code.  In reviewing discharges, the board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the applicant.  The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to determine if the discharge met the pertinent standards of equity and propriety.  

The applicant’s record of service included a Letter of Reprimand. His misconduct included an OSI Report of Investigation that substantiated the member approached a female contractor from behind and groped her breasts with both of his, hands without her consent.

The applicant and counsel contended that the discharge was improper and inequitable for three reasons: that the evidence provided for the member’s discharge was factually insufficient and the member did not commit the alleged offense, that the member was not given the appropriate amount of due process given the gravity of the impact that the discharge has had on him, and lastly that the LOR and discharge were permeated with unlawful Command Influence.

First, they stated that the evidence was factually insufficient and the member did not commit the alleged offense. They explained that the investigation by OSI was a shoddy, incomplete investigation. The member and counsel stated that when considering the statements from both parties, they noted that the complaining witness had as many as five drinks of liquor that night versus the subject who allegedly had four beers. They explained that the complaining witness’ statement shows that she had little memory of that night. They concluded by stating that the member’s version of events were very detailed and when put together with motive, the alcohol involved and credibility of various witnesses, it is clear that the evidence is insufficient. 

Second, they stated that the member was not given the appropriate amount of due process given the gravity of the impact the discharge has had on him, and lastly, they stated that the LOR and discharge was permeated with unlawful Command Influence. They explained that there was no challenging of the complaining witness’ story, the other witness accounts nor any follow up after Mr. Young made his response to the LOR. They also added that having two witnesses interview together was improper and that the interviews were two weeks after the alleged incident and therefore resulted in fabrication or confabulation. 

Finally, the applicant and counsel contended that there was Unlawful Command Influence in this case. They explained that due to recent incidents in the media, pressure and influence was put on the unit to discharge the member. They stated that it was clear that the unit did not believe the complaining witness as they discussed the lack of evidence, the shoddy investigation and the fact that the case would end in acquittal.

After a thorough review of the case and all documents in the applicant’s record, the DRB determined that the discharge was proper and fair. Although the applicant has maintained his innocence and raised several issues in his defense, there was insufficient evidence to the contrary that would outweigh the preponderance of evidence standard. The board recognizes the applicant’s contentions that there may have been issues with the witness’s interview, however, the witness testimony was not used as a basis for the discharge. Additionally, the board determined that the applicant was given full due process for the LOR as well as the discharge he received. The member was given the opportunity, and did in fact respond to the LOR that he received. Additionally, upon notification of discharge, the member was again offered an opportunity, and did provide a response. The board noted the member’s contention that the squadron Commander may not have wanted to proceed with the discharge, however, the squadron commander was only able to provide a recommendation to the separation authority. The separation authority had the option to consider the recommendation, but the final decision to discharge ultimately lay with the separation authority, who was the installation commander.

Regarding the seven retention criteria, in order to meet the requirements of the criteria, the applicant would have had to have admitted to the offense. Given that the applicant has maintained his innocence, the retention criteria are not applicable. Specifically, the retention criteria examine the likelihood a sexual assault will reoccur. This means there is one qualifying sexual assault, but the analysis is to determine whether the misconduct is likely to reoccur. If the applicant alleged the sexual assault never occurred in the first place, there is no additional analysis to examine the likelihood of a reoccurrence.  Lastly, regarding the unlawful command influence, there was no evidence that the separation authority made the decision to discharge due to unlawful influence.        

The Board considered the factors laid out in the attachment to the Under Secretary of Defense memorandum, Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations, dated 25 June 2018, known as the “Wilkie Memo.”  The Board considered the factors listed in paragraphs (6)(a)-(6)(l) of this memorandum, and concluded the following with regard to each factor: 

(6)(g). The relative severity of some misconduct can change over time, thereby changing the relative weight of the misconduct in the case of the mitigating evidence in the case. 
The board determined that the severity of this specific type of conduct has not changed. Members who were found guilty of the same misconduct now, would be subject to the same consequences. 

(6)(i).  Evidence submitted by a government official with oversight or responsibility for the matter at issue and that acknowledges a relevant error or injustice was committed, provided that it is submitted in his or her official capacity, should be favorably considered as establishing a grounds for relief.
The board noted the email traffic from squadron leadership regarding the recommendation to retain. However, the squadron Commander was not the Separation Authority in this case, and as such, the decision to proceed with discharge was not his to make, but rather the separation authority alone.  

FINDING:  The DRB voted unanimously to deny the applicant’s request to upgrade his discharge characterization to Honorable, to change the discharge narrative reason to Secretarial Authority, and to change the reenlistment eligibility code to 2C or 3K.

CONCLUSION:  After a thorough review of the available evidence, to include the Applicant’s contentions, summary of service, service/medical record entries, and discharge process, the Board found the discharge was proper. Therefore, the characterization of service shall remain “General”, the narrative reason for separation shall remain “Misconduct (Serious offense)”, and the reentry code shall remain 2B. The AFDRB results were approved by the board president on 2 February 2022.  If desired, the applicant can request a list of the board members and their votes by writing to:  

Air Force Review Boards Agency
Attn: Discharge Review Board
3351 Celmers Lane
Joint Base Andrews, NAF Washington, MD 20762-6602  
Instructions on how to appeal an AFDRB decision can be found at 
https://afrbaportal.azurewebsites.us

Attachment:
Examiner's Brief (Applicant Only)