RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2007-03009
INDEX CODE: 110.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His reason for discharge be changed from misconduct to Expiration of Term
of Service (ETS).
_________________________________________________________________
APPLICANT CONTENDS THAT:
He was not informed of his official discharge status until after his ETS
date. His official ETS date was 25 February 2007. He was notified of his
23 February 2007 discharge well after the fact. His MPF was notified on
the 26th of February, the date after his official ETS.
In support of his request, the applicant provided a personal statement and
a copy of his DD Form 256 AF, Honorable Discharge Certificate, and Reserve
Order A-176.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 23 February 2007, applicant was honorably discharged for misconduct.
The remaining relevant facts pertaining to this application, extracted from
the applicant’s military personnel records, are contained in the letter
prepared by the appropriate office of the Air Force (Exhibit B).
_________________________________________________________________
AIR FORCE EVALUATION:
AFRC/JA recommends denial. AFRC/JA states that on 9 August 2006, applicant
was attending the Combat Skills Training Course at Fort Sill, OK, and
refused to provide a urine sample during urinalysis testing. Several hours
later, after commander intervention and counseling, applicant provided a
urine sample, which was negative for the presence of drugs. According to
applicant’s defense counsel, applicant refused to provide the same as “a
form of protest and to draw attention to his safety concerns.”
On 6 October 2006, via Article 15 (UCMJ), the 932 AW/CC found applicant
violated the UCMJ, Article 90, willfully disobeyed a superior commissioned
officer’s lawful order and Article 92, failed to obey an order, for which
applicant was reduced to the grade of staff sergeant.
On 18 January 2007, applicant signed the Acknowledgment and Receipt of
Memorandum of Notification of Initiation (MON) of separation action. The
MON cited AFI 32-3609, paragraph 3.21.3.4, misconduct, commission of
serious offenses, other serious offense, as the basis for discharge.
Applicant elected to have an administrative discharge board hear his case.
On 8 February 2007, an administrative discharge board heard the case and
recommended discharge with an honorable service characterization, but that
the discharge be suspended for purposes of probation and rehabilitation
(P&R).
On Friday 23 February 2007, AFRC/CV approved the Board’s findings, but
rejected its recommendation that the discharge be suspended. AFRC/CV
signed the discharge order directing involuntarily discharge with an
honorable discharge.
On 25 February 2007, applicant’s ETS expired.
On 26 February 2007, applicant’s Military Personnel Flight (MPF) was
notified of AFRC/CV’s decision.
On 5 October 2007 AFRC/CV denied applicant’s defense counsel’s request to
mollify his discharge based on the lack of actual or constructive notice of
his specific date of discharge before his ETS on 25 February 2007.
AFI 36-3209, paragraph 1.5.2, states, “Orders directing separation or
discharge become effective at 2400 on the date specified in the member
receives actual or constructive notice on or before the effective date
specified in the orders. If a member intentionally avoids receipt of the
notice or if the delivery cannot be made through normal postal channels,
the effective date specified in the orders will be considered to be the
date official notification was received. A member continues to be a member
until the discharge becomes effective.” AFI 36-3209 does not define
“constructive notice;” however, it is a well-recognized legal concept and
defined in Black’s Law Dictionary.
The facts in this case are undisputed. The only issue for the Board is a
legal issue: Whether or not applicant’s knowledge of the discharge board’s
recommendation and his pending ETS was sufficient notice that the effective
date of his discharge orders (if approved) had to be on or before 25
February 2007. Per AFI 36-3209, paragraph 1.5.2., “orders directing
separation or discharge become effective at 2400 on the date specified if
the member receives actual or constructive notice (emphasis added) on or
before the effective date specified in the orders.” AFRC/CV’s order
directed applicant’s discharge on 23 February 2007. In this case,
applicant received constructive notice of this through the administrative
discharge board’s recommendations and his knowledge of his pending ETS.
Moreover, in all probability his defense counsel advised applicant of this
information.
Applicant’s defense counsel states, “[u]nbeknownst to [applicant] and [me],
AFRC/CV as the discharge authority, signed an order directing the
involuntary separation of [applicant]…” This statement is plausible for
actual notice, but implausible for constructive notice. For constructive
notice, the existence of facts and circumstances that a party had a duty to
take notice of are sufficient to satisfy due process. Applicant had a duty
to take notice of the board’s findings and recommendations and what they
meant. The board proceedings are clear that the board’s recommendations
are just that, recommendations; AFRC/CV is the decision authority. At law,
such knowledge is imputed to applicant. Moreover, applicant’s counsel had
a legal duty to know of and apprise applicant of the ramifications of the
board’s findings and recommendations. First, any competent defense counsel
would have apprised applicant that it was unlikely that AFRC/CV would graph
P&R. Second, a defense counsel would have advised applicant that AFRC/CV
would take action on the discharge prior to his ETS because otherwise he
would lose administrative authority. Therefore, after the board
recommended discharge, applicant knew that AFRC/CV would sign the discharge
orders prior to his ETS, 25 February 2007; AFRC/CV did so on 23 February
2007. Moreover, there is nothing in the case file, or in applicant’s
application, suggesting that he did not know that a discharge for
misconduct would have to be done before his 25 February 2007 ETS date.
In addition to the above facts and circumstances the applicant or his
defense counsel knew or should have known from a substantive and procedural
due process standpoint, that the rationale for notice of discharge prior to
ETS is for respondents and applicant’s to be able to exercise any
constitutional rights available at that point. Even assuming arguendo that
applicant did not have actual or constructive knowledge of his discharge
for misconduct, his remedy would be the AFBCMR. Thus, applicant would be
in exactly the same position as he is now. Accordingly, applicant has not
forfeited any due process rights.
Finally, the Board should not accept applicant’s factually deficient and
technically flawed argument. To do so would compromise the Air Force
discharge process and create fundamental injustice to all those service
members who did not commit acts of misconduct and were discharged on their
ETS with an honorable service characterization.
AFRC/JA’s complete evaluation is at Exhibit B.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 4 January 2008, the evaluation was forwarded to the applicant for review
and comment within 30 days (Exhibit C). As of this date, this office has
received no response.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. The applicant has exhausted all remedies provided by existing law or
regulations.
2. The application was timely filed.
3. Insufficient relevant evidence has been presented to demonstrate the
existence of an error or an injustice. We took notice of the applicant's
complete submission in judging the merits of the case; however, we find no
evidence of an error in this case and are not persuaded by his assertions
that he has been the victim of an injustice. In this respect, it is our
opinion that the argument that he was not officially informed of the
decision to discharge him until after his ETS is not in and of itself,
prevalent over the commander's action taken on 23 February 2007 to separate
him on that date. The governing instruction provides provision for
"constructive notice" when "actual notice" does not take place, and we
agree with the office of the judge advocate that application of the
constructive notice provision is appropriate in this case. Therefore, we
adopt the rationale expressed as the basis for our conclusion that the
applicant has not been the victim of an error or injustice. In view of the
above and absent persuasive evidence to the contrary, we find no compelling
basis to recommend granting the relief sought in this application.
_________________________________________________________________
THE BOARD DETERMINES THAT:
The applicant be notified the evidence presented did not demonstrate the
existence of an error or injustice; the application was denied without a
personal appearance; and the application will only be reconsidered upon the
submission of newly discovered relevant evidence not considered with this
application.
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-2007-
03009 in Executive Session on 31 March and 15 April 2008, under the
provisions of AFI 36-2603:
Mr. Wayne R. Gracie, Panel Chair
Mr. James G. Neighbors, Member
Ms. Janet I. Hassan, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 11 May 2007, w/atchs.
Exhibit B. Letter, AFRC/JA, dated 7 December 2007.
Exhibit C. Letter, SAF/MRBR, dated 4 January 2008.
WAYNE R. GRACIE
Panel Chair
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