AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL DOCUMENT  
	CASE NUMBER

FD-2022-00040	
					
SUMMARY:  The applicant was discharged on 2 November 2020 in accordance with AFI 36-3208 with an Under Other Than Honorable (UOTHC) discharge for Misconduct.  The applicant appealed for an upgrade of his discharge characterization.

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.  

Through counsel, the applicant contended his discharge was inequitable and improper.  Counsel argued the alleged victim cooperated with the Government from the beginning alluding to there were weaknesses in the Government's case which resulted in them changing the forum from a Court Martial with a "beyond a reasonable doubt" standard to a simple "preponderance of the evidence" standard.  Therefore, the applicant was not afforded the same protections as he would have been at a court-martial.  Furthermore, counsel argued the board members used incorrect standards to determine whether the allegation was substantiated.  During the board hearing the Government Recorder continually argued that the standard was an allegation should be substantiated if the board believed that the misconduct "could have happened" by a preponderance of the evidence.  The applicant’s counsel argued the standard is not "could have" but rather "did" happen.  This error was raised in a thorough and well researched memorandum that the applicant’s Area Defense Counsel submitted after the proceedings, however, the memo was ignored and the applicant’s discharge was approved.

A review of the applicant’s record revealed he was accused of sexual assault on a female Airman by touching her without her consent.  Court-martial charges were subsequently preferred against the applicant.  The victim originally agreed to testify at trial, however, during the trial scheduling she was deployed.  Due to her deployment the victim changed her mind and refused to cooperate in the trial.  The unit then initiated discharge action and the applicant elected to present his case at a board hearing.  The board determined the applicant committed the offense and recommended he be discharged with a UOTHC characterization.  

After a thorough review of the evidence the DRB determined the applicant’s discharge characterization was inequitable based on the merits of the case.  The DRB concluded that based on the circumstances of the misconduct a General characterization was more appropriate.  

FINDING:  The DRB voted unanimously to approve the applicant’s discharge upgrade characterization to General.  The DRB also voted 3 to 2 to approve changing the discharge narrative reason to Secretarial Authority and voted unanimously to deny changing 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 inequitable.  Therefore, the awarded characterization of service shall change to General, the narrative reason for separation shall change to Secretarial Authority, and the reentry code shall remain.  The AFDRB results were approved by the board president on 24 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)