AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00587	
					
SUMMARY:  The applicant was discharged on 12 February 2021 in accordance with AFI 36-3208 with an Under Other Than Honorable discharge for Misconduct (Serious Offense).  The applicant appealed for an upgrade of his discharge characterization.

The applicant appeared and testified before the Discharge Review Board (DRB), without counsel, via video teleconference using Zoom on 17 February 2022.  No witnesses were present to testify on the applicant’s behalf. 

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 contended that he was falsely accused of sexual assault.  He claimed his property was unlawfully searched and he was not provided an attorney during questioning.  He also claimed that his ADC advised him to accept a lesser form of punishment and he did so to protect his mental health.   

A review of the record revealed the applicant was accused of sexual assault against a female.  The Office of Special Investigation report indicated the applicant had sexual intercourse with a female that was too incapacitated to consent to the act.  Court-martial charges were preferred against the applicant and a subsequent Article 32 hearing determined probable cause existed to proceed with a court-martial.  

The applicant submitted an offer for alternate disposition of his court-martial charge.  He agreed to accept nonjudicial punishment and unconditionally waive his right to an administrative discharge board in exchange for the convening authority to withdraw and dismiss the court-martial charge.  The applicant was offered nonjudicial punishment and found guilty of assault.  An administrative discharge was initiated and the applicant acknowledged he could receive a UOTHC discharge if administratively discharged from the Air Force.

The DRB determined the applicant appealed to his command to withdraw and dismiss the court-martial charges and in exchange for the dismissal, he waived his right to an administrative discharge board hearing where he could have presented his case and addressed his evidentiary concerns.  The DRB found the applicant’s contentions that he did not have access to an attorney and that he was unfairly discharged for the sexual assault were without merit.  The applicant’s chain of command properly applied Air Force policy to the disposition of the offense.  Therefore, the DRB concluded there was no evidence of impropriety or inequity.  Based on the egregious nature of the misconduct, the discharge the applicant received was appropriate.

LIBERAL CONSIDERATION:
Due to evidence of a mental health condition found in the applicant’s medical record, the Board considered the case based on the liberal consideration (LC) standards required by guidance from the Office of the Under Secretary of Defense for Personnel and Readiness and 10 USC §1553.  The Board included a member who is a clinical psychologist/psychiatrist.  Specifically, the Board reviewed the four questions the Under Secretary of Defense provided that boards should consider when weighing evidence in requests for modification of discharges due in whole or in part to mental health conditions, including post-traumatic stress disorder (PTSD); Traumatic Brain Injury (TBI); sexual assault, and sexual harassment.  The Board considered the following: 

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
No. The applicant is not contending a mental health condition caused, mitigated, or excused the misconduct that led to the applicant’s discharge. There is no evidence or record that a mental health condition caused, mitigated or excused the applicant’s discharge.  

 2. Did that condition exist/experience occur during military service? 
There is no evidence a mental health condition caused, mitigated or excused the applicant’s discharge. 

3. Does that condition or experience actually excuse or mitigate the discharge? 
There is no evidence a mental health condition caused, mitigated or excused the applicant’s discharge.

4. Does that condition or experience outweigh the discharge? 
There is no evidence a mental health condition caused, mitigated or excused the applicant’s discharge.

Additionally, 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 did not find any evidence of error or impropriety.

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 issues, summary of service, service/medical record entries, and discharge process, the Board found the discharge was proper.  Therefore, the awarded characterization of service shall remain, the narrative reason for separation shall remain, and the reentry code shall remain. The AFDRB results were approved by the board president on 28 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)