DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 98- 02440 

MAR  I 2  1999 

MEMORANDUM FOR THE CHIEF OF STAFF 

Under the authority of Section 1552,  Title 10, United States 

Code, Air Force Instruction 36-2603,  and having assured 
compliance with the provisions of the above regulation, the 
decision of the Air Force Board for Correction of Military 
Records is announced, and it is directed that: 

The pertinent 
Force relating to 
show that 

nt of the Air 
be corrected to 

a. The Vacation of Suspended Nonjudicial Punishment 
imposed on her under the provisions of the Uniform Code of 
Military Justice on 2 1  October 1997,  be, and hereby is, set aside 
and all rights, privileges and property of which she may have 
been deprived be restored. 

b.  The discharge proceedings under AFI 36- 3208,  dated 

18 November 1997,  be, and hereby are, declared void and removed 
from her records. 

c. She was not discharged on 1 9   November 1997,  but was 

continued on active duty and ordered permanent change of station 
to her home of record. 

f 

RA MOND 'H.  ~ELLER 
Ch'ef 
A h  Force Board for Correction 
of Military Records 

Examiner 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 98- 02440 

MEMORANDUM OF CONSIDERATION OF APPLICATION BEFORE THE AFBCMR 
SUBJECT : 

Having carefully reviewed this application, we agree with 
the recommendation of the Air Force and adopt the rationale 
expressed as the basis for our decision that the applicant has 
been the victim of either an error or an injustice.  Therefore, 
under the authority delegated in AFI 36-2603, the applicant's 
records will be corrected as set forth in the accompanying 
Memorandum for the Chief of Staff signed by the Executive 
Director of the Board or his designee. 

Panel Chair 
I 

Attachments: 
1. Ltr, AFPC/JAJM, dtd 4 Dec 98 
2 .   Ltr, AFPC/JA, dtd 2 Feb 99 

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DEPARTMENT OF THE AIR  FORCE 
AIR  FORCE  LEGAL SERVICES  AGENCY  (AFLSA) 

MEMORANDUM FOR AFBCMR 

FROM: AFLSNJAJM 

112 Luke Avenue, Room 343 
Bolling Air Force Base, DC 20332-8000 

4 Dec 98 

Applicant's request:  In an application dated 29 Jul98, the applicant requests that she be 
reinstated in the Air Force with reimbursement of all lost pay, rank and benefits, or to be equally 
compensated.  She also asks that her general (under honorable conditions) discharge be upgraded. 
Her application is submitted in a timely manner in accordance with the three-year limitation 
provided by  I O  U.S.C.  1552(b). 

This review addresses only the sufficiency of the military justice actions taken against the 
applicant; in particular, the vacation of her suspended reduction in rank under Article 15, UCMJ. 
This review does not address whether or not the evidence is adequate to support her administrative 
discharge for misconduct.  The case file should be forwarded to AFPCIJA for a review of the 
sufficiency of the administrative discharge action. 

Facts of military justice action:  On 23 Jun 97, the applicant received a letter of reprimand 
for allegedly failing to properly weigh in during the annual squadron weigh-in, and then lying about 
it when questioned. On 4 Jul 97, the applicant unlawfully struck another person, resulting in 
nonjudicial punishment under Article 15, dated 22 Jul97.  Her commander imposed punishment 
consisting of  45 days extra duties, forfeiture of $450.00 pay and a suspended reduction in rank to 
airman basic.  On 22 Jul97, the applicant unsuccessfully appealed the finding and the punishment. 
The applicant subsequently received a letter of reprimand, dated 21 Oct 97, for failure to perform the 
extra duty details in a safe and prudent manner.  In addition, also on 21 Oct 97, the applicant 
received notice from her commander of his intent to vacate the suspended reduction in rank for 
allegedly willfully disobeying a lawful order by failing to perform the extra duties in a safe and 
prudent manner.  In response, the applicant provided letters from three extra duty supervisors who 
indicated she performed extra duties in an exemplary manner.  After considering all of the 
documentation, on 27 Oct 97, the commander vacated the suspended punishment, reducing the 
applicant to the grade of airman basic. 

On 3 Nov 97, the applicant was notified by her commander of his intent to discharge her 

based on a pattern of misconduct under AFI 36-3208, paragraph 5.50.2.  In response, the applicant 
submitted several letters in support of her desire to remain in the Air Force, including a letter from 
the victim of the incident that initiated the Article 15 action, who stated that her original statement to 
the security police was an exaggeration. Nevertheless, the applicant was administratively discharged 
for a pattern of misconduct.  Her discharge was characterized as a general discharge under honorable 
conditions. 

Applicant’s contentions: The applicant believes that documentation and evidence that she 

provided on her behalf was intentionally not included or allowed to be used in her defense.  She 
claims that this evidence was proof of her innocence, and if it were considered in her defense, she 
would have been found innocent.  Furthermore, she claims that the actions taken against her were 
discriminatory. 

Discussion:  The issue is whether the applicant should be reinstated into the Air Force and, if 
so, whether she should be compensated for all pay and benefits lost since her discharge.  If the Board 
determines that the applicant should not be reinstated, the Board may refer her to the Discharge 
Review Board to request an upgrade of her discharge. 

Although the applicant believes that documentation and evidence she provided on her behalf 

was not allowed to be used as part of her defense, she provides no evidence to support this claim. 
The final discharge package appears to include all of the evidence submitted with the applicant’s 
BCMR application, with the exception of a summarized report of investigation from the 20 Fighter 
Wing Inspector General.  That report, however, absolved the applicant’s former squadron of any 
wrongdoing.  The applicant has provided no evidence to support her claim that she was disallowed 
from submitting the I.G. report in her defense. 

The disciplinary actions taken against the applicant appear to be legally sufficient, with the 
exception of the vacation of suspended reduction in rank.  This action was based on a violation of 
Article 90, for willfully disobeying a lawful command from a superior commissioned officer to 
perform her assigned extra duties in a safe and prudent manner. 

The first element of this offense is that the accused received a lawful command from a 

superior commissioned officer.  In this case, however, there is no evidence that the applicant actually 
received an order or command from a superior commissioned officer.  Instead, the file contains a 
description of the extra duty program, which is provided to all participants in the extra duty program. 
The alleged failure to obey an order is apparently based on the following language in the description 
of the program:  “This program has been initiated by the 20 FW Commander and therefore failure to 
comply with these standards and rules would constitute failure to obey hisher direct order.”  This 
description is not signed by the commander. Although this language purports to create an order from 
the commander, it falls short of a direct order.  Mere language stating that the commander initiated a 
program does not equate to a direct order.  Article 90 of the Uniform Code of Military Justice 
requires that an order be directed specifically to the subordinate by a superior commissioned officer. 
In addition, the order must be a specific mandate to do or not to do a specific act.  A warning to 
“obey the law” or to perform one’s military duty does not constitute an order under Article 90.  See 
Manual for Courts-Martial (MCM), paragraphs 14(c)(2)(b) and 14(c)(2)(d).  Therefore, the evidence 
fails to satisfy the first element of Article 90; that the applicant received a lawkl command from a 
superior commissioned officer.  Accordingly, the vacation action that reduced the applicant to the 
rank of airman basic was not legally sufficient. 

If the Board agrees that the vacation action is not legally sufficient, the next issue is whether 

applicant should be compensated for lost pay, benefits, and rank.  The Board has the authority to 
provide such compensation to the applicant.  10 U.S.C. 5 1552(c) provides that the Secretary 
concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, 
compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, 
if, as a result of correcting a record under this section, the amount is found to be due the claimant.  In 

the case at hand, the applicant was reduced to Airman Basic (E-1) on 27 Oct 97 as a result of the 
vacation action.  Her rank remained the same until her discharge on 19 Nov 97.  Assuming the Board 
determines the vacation action should be nullified, the applicant should be restored to her previous 
rank of Airman (E-2), effective 27 Oct 97, with all pay and benefits adjusted accordingly. 

Finally, if the Board decides the vacation action is not legally sufficient, it should also 

determine whether the file nonetheless supports an administrative discharge under AFI 36-3208, 
paragraph 5.50.2., for a pattern of misconduct.  In other words, does the underlying misconduct 
which was the basis for the vacation action, combined with the other instances of misconduct, 
provide an adequate basis for applicant’s involuntary separation from the Air Force.  That issue is 
most appropriately addressed by AFPCIJA. 

Recommendation:  Based on the above, I recommend the following regarding the 

applicant’s request for relief: 

a.  That the Board determine the vacation action, dated 27 Oct 97, to be legally insufficient 
and remove it from the applicant’s records; 

c.  That the applicant be restored to the grade of Airman (E-2), effective 27 Oct 97; 

d.  That the applicant be compensated for the difference in the rate of pay between E-1 and 
E-2 for the period of 27 Oct 97 to 19 Nov 97; and 

e.  Assuming the Board finds the vacation action legally insufficient, that the case file be 
forwarded to AFPCIJA to review whether or not administrative discharge is otherwise 
supported by the evidence. 

LOREN S. PERLSTEIN 
Associate Chief, Military Justice Division 
Air Force Legal Services Agency 

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D E P A R T M E N T  O F  THE AIR  FORCE 

HEADQUARTERS AIR  FORCE PERSONNEL CENTER 

RANDOLPH  AIR  FORCE BASE TEXAS 

2 February 1999 

MEMORANDUM FOR AFBCMR 

FROM:  HQ AFPCIJA (Major Reed) 

550 C Street West Ste 44 
Randolph AFB TX 78 150-4746 

SUBJECT:  Application for Correction of Military Records 

REQUESTED ACTION:  Applicant requests to be reinstated in the Air Force with 

reimbursement for all loss of pay, grade, and benefits resulting fiom her administrative 
separation. 

BASIS FOR REQUEST:  Applicant believes that evidence she provided as part of her 

defense was intentionally not included in her discharge package, and that the evidence proves her 
innocence. 

FACTS:  At the time of her discharge, 19 Nov 97, applicant was a fvst term airman basic 
and had been serving on active duty since 12 Jun 96.  She was discharged under the provisions of 
Air Force Instruction 36-3208, Administrative Separation of Airmen, paragraph 5.50.2, for 
engaging in a pattern of misconduct---conduct prejudicial to good order and discipline.  The 
specific reasons for discharge were: 

1.  That between 9 and 13 Jun 97, applicant failed to properly weigh-in during the 

annual squadron weigh-in and lied about it stating that the First Sergeant had 
weighed her in.  For this offense, she received a letter of reprimand for which 
she refhed to acknowledge receipt. 

2.  That on 4 Jul97, applicant unlawfully struck another person on the face with 
her fist.  For this offense, applicant received an Article 15, UCMJ, nonjudicial 
punishment action which established an unfavorable information file (UIF). 
The punishment imposed under Article 15 consisted of forfeiture of $450.00 
pay, 45 days of extra duties, and a suspended reduction from airman (E-2) to 
airman basic (E-1). 

m 

3.  That between 11 Sep 97 and 9 Oct 97, applicant willfully disobeyed a lawful 
order to perform her extra duties in a safe and prudent manner.  Specifically, 
she failed to wear a seatbelt, work gloves, and safety equipment while mowing 
and weed-eating, was late returning fiom lunch, and failed to complete her 
work in a thorough and timely manner, resulting in the work being redone. 
Applicant received a letter of reprimand, dated 21  Oct 97, for these offenses, 
and her suspended nonjudicial punishment was vacated on 27 Oct 97, 
resulting in her reduction to airman basic. 

Applicant was notified that she had been recommended for discharge on 3 Nov 97. 

Applicant responded to the proposed discharge by letter dated 4 Nov 97.  That letter does not list 
any attachments and references only a letter b
which was included in the discharge package. 

, the victim of the assault, 

d

 

On 18 Nov 97, 

approved applicant's discharge, directed that she be discharged 

with a general, under honorable conditions, characterization, and denied her probation and 
rehabilitation under Chapter 7 of AFI 36-3208. 

Applicant timely filed her application with the Board on 29 Jun 98. 

DISCUSSION: We have reviewed the advisory opinion prepared by AFLSNJAJM on 

4 Dec 98.  We concur in their opinion regarding the legality of the 27 Oct 97 vacation of 
suspended nonjudicial punishment action. Therefore, our discussion will be limited to the 
administrative aspects of applicant's case and application of AFLSNJAJM's findings of 
irregularity in the vacation action to the administrative discharge. We will address first, 
applicant's specific allegations of error in the discharge process. 

Applicant alleges that documentation and evidence that she provided in her defense 

during the discharge process were not made part of the discharge action and were not considered 
as part 0- 

decision to discharge her.  We disagree. 

3

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First, applicant has not made specific allegations.  She has submitted no evidence that any 

tted was not made a part of the discharge case file.  With the 
ummary report attached to applicant's DD Form 149, all documents 

she has submitted to the Board were included in her discharge package.  Nothing in her 
submissions to the discharge authority would indicate that the IG summary was submitted at that 
y the separation authority 
time.'  Therefore, we conclude her submissions were in fac 
as indicated in the 13 Nov 97 legal review (paragraph 3) b 
irregularity occurred in processing her administrative separ 

that no error or 
ir Force. 

' It is our opinion that since the IG summary report exonerates her unit, even if she had submitted the report as part 
of her discharge response it would not have persuaded any separation authority to have retained her. 

2 

Next, we turn to the effect of AFLSNJAJM's determination that the vacation of the 

suspended nonjudicial punishment was not legally sufficient.  First, discharges are not based on 
punishment a member may have received, but on the conduct that precipitated the punishment. 
Thus, for the purpose of legal sufkiency of the discharge, it is irrelevant whether the Article 15 
vacation action was legally sufficient-what is relevant is the conduct.  However, the conduct, 
according to the language of the commander's notification of discharge, was that applicant 
"willfully disobeyed a l a m  order fiom . . . a superior commissioned officer, to pefiorm 
assigned extra duties in a safe and prudent manner."  Since AFLSNJAJM determined that there 
was no lawful order within the meaning of Article 90, UCMJ, we defer to their finding and 
determine that there also was no lawfbl order within the meaning of AFI 36-3208.  Thus, an error 
has occurred in applicant's records. 

In truth, applicant's conduct was still criminal.  It violated the portion of Article 90 

dealing with dereliction of duty, a lessor offense.  Furthermore, in our opinion, had the 
commander cited dereliction of duty, instead of violation of an order as the third basis for 
discharge, the discharge would have been legally sufficient.  However, since dereliction of duty 
does not necessarily involve willful misconduct, we cannot determine that the commander would 
definitely have discharged applicant if dereliction of duty had been cited as part of the basis for 
discharge.  Therefore, we cannot conclude that applicant was not materially affected by the error 
in her records. 

RECOMMENDATION:  Consistent with the analysis above, we recommend that the 

Board remove both the vacation of nonjudicial punishment action and the administrative 
discharge fiom applicant's records and that the Board direct that applicant be reinstated with 
appropriate back pay, allowances, and supplemental promotion consideration.  We also 
recommend that the Board advise applicant that her records will reflect that the Article 15, 
nonjudicial punishment, dated 22 Jul97, and the LOR, dated 21  Oct 97, were unaffected by the 
Board's decision and will be continued in her active UIF until normal disposition. 

R. PHILIP DEAVEL, Colonel, USAF 
Staff Judge Advocate