RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF:DOCKET NUMBER: BC-2011-01003 

 

 COUNSEL: 

 

 HEARING DESIRED: YES 

 

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APPLICANT REQUESTS THAT: 

 

He be reinstated on active duty in his last pay grade. 

 

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APPLICANT CONTENDS THAT: 

 

His commanding officer abused his discretion when he 
discharged the applicant for committing a serious offense. 
He should have been afforded an opportunity for nonjudicial 
punishment (NJP) and/or offered retention with probation and 
rehabilitation. At the time of his discharge, he was facing 
a charge of driving while impaired (DWI) by civil 
authorities. In many similar cases, a first offender is 
treated very lightly by the civilian court, absent 
aggravating factors. In the military environment, most non-
aggravating DWI first offenses are almost always handled 
with NJP (Article 15). In the absence of a finding of abuse 
of discretionary authority, the Board should reinstate him 
based on equity. 

 

In support of his request, the applicant provides a 
statement from counsel and copies of documents extracted 
from his military records. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

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STATEMENT OF FACTS: 

 

The applicant contracted his enlistment in the Regular Air 
Force on 9 Jun 09. He served as an Aircraft Hydraulic 
Systems Apprentice. 

 

On 3 Jan 11, his commander notified him that he was 
recommending his discharge from the Air Force for the 
commission of a serious offense. The specific reason for 


the discharge action was that, on or about 14 Nov 10, the 
applicant operated a motor vehicle after consuming alcohol 
and was apprehended by civilian authorities. For this 
misconduct he received a Letter of Reprimand (LOR), dated 13 
Dec 10. 

 

His commander advised the applicant of his rights in this 
matter. On 6 Jan 11, the applicant acknowledged receipt of 
the notification and, after consulting with legal counsel, 
he elected to submit a statement in his own behalf. 

 

The legal office reviewed the case, found it legally 
sufficient to support separation, and recommended discharge 
with a general (under honorable conditions) discharge 
without probation and rehabilitation. 

 

On 20 Jan 11, the discharge authority concurred with the 
commander’s recommendation and directed the applicant be 
furnished a general discharge without probation and 
rehabilitation. The applicant was discharged on 25 Jan 11 
and was credited with 1 year, 7 months, and 17 days of 
active service. 

 

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AIR FORCE EVALUATION: 

 

AFPC/DPSOS recommends denial, indicating there is no 
evidence of an error or injustice. According to the 
documentation on file in the master personnel records, the 
discharge, to include the character of service, was 
appropriately administered and was within the discretion of 
the discharge authority. In accordance with the governing 
instruction, AFI 36-3208, Administrative Separation of 
Airmen, paragraph 5.52, airmen are subject to discharge for 
commission of a serious offense if the specific 
circumstances of the offense merit separation. The 
applicant operated a motor vehicle after consuming alcohol 
and his misconduct warranted separation. 

 

Also, under the governing AFI, a service member is subject 
to discharge for misconduct based upon the commission of a 
serious offense if a punitive discharge would be authorized 
for the same or a closely related offense under the Manual 
for Court-Martials (MCM). Under the provisions of the MCM, 
a punitive discharge is authorized for drunken or reckless 
operation of motor vehicle. Furthermore, discharge for a 
commission of a serious offense does not require conviction 
to discharge the service member. The commander must have 
credible evidence that the offense was committed. Under 
MCM, Article 111 an offense occurs when a person operates or 
is in physical control of a vehicle when the alcohol 


concentration in his breath exceeds the applicable limit of 
the law for the State. In the state the applicant was 
apprehended, the legal limit of blood alcohol concentration 
(BAC) is 0.08 and the applicant’s BAC at the time he was 
apprehended was 0.14. 

 

The complete AFPC/DPSOS evaluation is at Exhibit C. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

On 17 Jun 11, a copy of the Air Force evaluation was 
forwarded to the applicant and counsel for review and 
comment within 30 days. As of this date, a response has not 
been received by this office (Exhibit D). 

 

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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 injustice. The 
applicant's complete submission was thoroughly reviewed, to 
include his counsel’s comments, and the contentions were 
duly noted. However, we do not find the counsel’s 
assertions and the documentation presented in support of his 
appeal sufficiently persuasive to override the rationale 
provided by the Air Force office of primary responsibility 
(OPR). Therefore, we agree with the recommendation of the 
Air Force OPR and adopt its rationale as the basis for our 
decision the applicant has failed to sustain his burden of 
proof of the existence of an error or injustice. Therefore, 
absent persuasive evidence that appropriate directives were 
not followed, appropriate standards were not applied, or the 
applicant was denied rights to which he was entitled, we 
find no basis to recommend granting the relief sought in 
this application. 

 

4. The applicant's case is adequately documented and it has 
not been shown that a personal appearance with or without 
counsel will materially add to our understanding of the 
issue(s) involved. Therefore, the request for a hearing is 
not favorably considered. 

 


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THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material 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. 

 

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The following members of the Board considered AFBCMR Docket 
Number BC-2011-01003 in Executive Session on 6 Dec 11, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 1 Mar 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOS dated 26 May 11. 

 Exhibit D. Letter, SAF/MRBR, dated 17 Jun 11. 

 

 

 

 

 

 Panel Chair