AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00591	
					
SUMMARY:  The applicant was discharged on 18 September 2014 in accordance with AFI 36-3207 with a General discharge for Misconduct (Serious Offense).  The applicant appealed for an upgrade of his discharge characterization, a change to the discharge narrative reason and associated separation code, and a change to the reenlistment eligibility code.

The applicant appeared and testified before the Discharge Review Board (DRB), with counsel, via video teleconference using Zoom on 15 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.  

Through counsel, the applicant contended his discharge was inequitable and improper based on the  following issues:

- Insufficient evidence to support the incidents alleged in the non-judicial punishment and separation documents, and abuse of discretion to find the applicant committed the offenses.
- The discharge was the result of unlawful command influence placed on the Separation Authority.
- At the time of issuance, the discharge was inconsistent with standards of discipline in the Air Force and this type of conduct did not commonly result in discharge.
- The evidence of the HSV-2 diagnosis was illegally obtained, therefore, this charge was improper.  
- The discharge should be upgraded as a matter of equity because of the applicant’s otherwise exemplary record.
- The discharge should be upgraded as a matter of equity because of the applicant’s accomplishments since separating from the Air Force.

Note:  The applicant indicated “reprisal” on his application, however, during his hearing he informed the DRB this was an error.

A review of the record revealed the applicant was in a consensual sexual relationship with a female officer with whom he was stationed.  The applicant and the female officer engaged in a night of drinking where the female officer became highly intoxicated.  The applicant went to the female officer’s home after the evening was over and engaged in sex with her.  The female officer later reported the incident as a sexual assault claiming she was too incapacitated to consent.  The applicant had court-martial charges preferred against him for sexual assault (Article 120), not disclosing he had the HSV-2 virus (Article 134), and unlawful entry (Article 133).  An Article 32 investigation was conducted and the investigating officer determined there was probable cause to refer all the charges to a General Court-martial.  

The applicant subsequently submitted an offer for alternate disposition in which he requested administrative disposition of the charges against him.  In exchange for the convening authority withdrawing the Article 120 allegation, the respondent offered to accept non-judicial punishment proceedings for the Article 133 and 134 allegations.  Additionally, he agreed to waive his right to an administrative discharge board in exchange for no worse than a General service characterization.

The DRB determined the applicant persuaded the command to withdraw and dismiss the court-martial charges.  In exchange for the dismissal of charges, the applicant waived his right to a Board of Inquiry where the misconduct and evidence could have been explored, he could have presented his case, and addressed his evidentiary concerns.  The DRB found the applicant’s contentions without merit.  There was no evidence of undue command influence, abuse of authority, or improper evidence collection.  To address each concern:  

1.  There was no evidence offered in support of the applicant’s contentions that the separation authority was unduly influenced and pressured.  

2.  The applicant included emails from his immediate commander suggesting that he did not want to separate the applicant.  In the case of officer separations, the squadron commander can only provide a recommendation, but it is the installation commander who, as the separation authority, makes the final decision.  As such, the installation commander was in the position to receive recommendations from the lower commanders, but ultimately the decision was at the installation commander level.  Therefore, even if the immediate commander did not support the discharge, it was not his decision to make.  Thus, there was no abuse of authority since his immediate commander, the squadron commander, did not have the authority to make the decision to separate the applicant.  

3.  The applicant contended that the evidence was obtained pursuant to a lawful investigation. The separation action is administrative in nature and not criminal.  Therefore, the evidentiary standards applied in criminal prosecutions are inapplicable for an administrative discharge.  Moreover, the applicant waived his right to have his case undergo the crucible of a court-martial when he offered to accept non-judicial punishment in lieu of facing trial.  He further waived his right to a Board of Inquiry where that same level of scrutiny could have occurred.  Upon reviewing of the evidence in the service records and evidence presented by the applicant the DRB found that the applicant received due process and was ultimately held accountable for the misconduct he was found to have committed.  There was sufficient evidence to support his discharge by a preponderance of the evidence.  While the applicant claimed reasonable minds could not differ on these significant matters, the applicant also explained he offered the alternate disposition due to fear of losing at trial.  The evidence suggests the process was fair, and the applicant knowingly and intelligently waived his rights to both a trial and a Board of Inquiry.   

The DRB further determined, given the totality of the applicant’s misconduct, the standard of discipline was appropriate and the chain of command appropriately applied Air Force policy and discretion.  Therefore, the DRB concluded there was no evidence of impropriety or inequity and the discharge the applicant received was appropriate.
 
LIBERAL CONSIDERATION:

Due to the applicant’s contention of a mental health condition, 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. Although there is evidence the applicant sought and received mental health treatment during his time in service, 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 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 and associated separation code 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 and associated separation code 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)