AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2021-00658	
					
SUMMARY:  The applicant was discharged on 28 June 2018 in accordance with AFI 36-3209 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 10 May 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 his discharge was inequitable and the result of legal error.  Counsel argued his administrative separation was plagued by administrative error, inequitable command decision making, and an air of retributive justice.  Furthermore, his discharge was unduly harsh, was disproportionate compared to other equally situated Airmen, and certain testimony at his discharge board hearing was inappropriate.  Finally, the applicant asserted his post-service conduct has been exceptional and warranted additional consideration for the sake of equity and justice.

A review of the applicant’s record revealed he was the subject of an OSI investigation involving prescription medication fraud in the applicant’s unit.  It was reported an NCO in the unit conspired with a local doctor to write fraudulent prescriptions for other members in the unit, to include the applicant.  The NCO then paid the applicant, as well as the other members, a “rebate” when TRICARE reimbursed the pharmaceutical company the prescriptions were from.  OSI discovered during a UTA weekend the NCO approached the applicant and asked him if he would be interested in receiving pain ointment.  The applicant reported he was an avid athlete and mixed martial arts fighter who suffered from frequent muscle pain and visible scars and the NCO offered to set him up with an automatic shipment prescription plan.  The NCO also relayed the applicant would receive a monthly "rebate" for using the pain ointment and supporting the company.  The NCO also directed the applicant to see the local doctor he was conspiring with to get a physical to give the transactions an air of legitimacy.  TRICARE in-turn paid the pharmaceutical company approximately $171K for the applicant’s claims, and according to bank records, the applicant received approximately $3K in “rebates” from the NCO.  

The applicant’s counsel argued that the NCO ring leader portrayed himself as a pharmaceutical representative and convinced several Airmen in the unit to participate in the scam.  The applicant cancelled the auto shipments approximately 9 months later as he no longer wanted to use the products.  The applicant claimed he was not aware his participation in the scam could be considered fraudulent.  He trusted both the NCO and the doctor that were involved and thought their activity was legal.  The NCO and the doctor were both later found guilty of a nationwide TRICARE scam.  

Additionally, counsel argued that at the applicant’s discharge board hearing the applicant’s commander was unduly aggressive towards the applicant as well as the board members and unnecessarily intimidated them.  The commander testified he had never met the applicant, and did not intend to, and that everyone involved in the fraudulent activity should be discharged.  He also referred to the applicant as a “cancer in the unit” and personally tried to influence the outcome of the board based on his own uniformed opinions of the applicant’s involvement in the scam.  

Finally, counsel argued the board found the applicant did commit misconduct, however, the board recommended suspension of the discharge with probation and rehabilitation.  Despite this recommendation, the applicant’s otherwise blemish-free career, and he was cut one day short of his ETS, the applicant was discharged with a General service characterization.  

The DRB determined, through the applicant’s testimony, there were irregularities in the government’s actions.  Also, the evidence presented to the board that was not available at the applicant’s discharge board hearing indicated the applicant had no intention to defraud the government.  The DRB concluded that although the applicant’s involvement in the scam was not proper, his misconduct did not outweigh his positive contributions.  Additionally, the evidence revealed other similarly situated Airmen in the unit received less severe punishment than the applicant, therefore, the DRB found the applicant’s discharge was unduly harsh.   

FINDING:  The DRB voted unanimously to approve 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 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 improper and inequitable.  Therefore, the awarded characterization of service shall change to Honorable, the narrative reason for separation shall change to Secretarial Authority, with a corresponding separation code, and the reentry code shall change to 3K.  The AFDRB results were approved by the board president on 
13 May 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)