DOCKET NUMBER:  BC-2012-00657 
COUNSEL:  NONE 
HEARING DESIRED: YES 

 
                       RECORD OF PROCEEDINGS 
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 
IN THE MATTER OF: 
 
    
 
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
His military record be corrected as follows: 
 
1.  His 20 December 2006, non-judicial punishment under Article 
15 of the Uniform Code of Military Justice (UCMJ), be removed.   
 
2.  Item  24,  character  of  service,  on  his  DD  Form  214, 
Certificate of Release or Discharge from Active Duty, be amended 
to  change  the  characterization  of  his  service  from  under 
honorable conditions (general) to honorable.   
 
3.  He  be  returned  to  either  the  Regular  Air  Force,  Air  Force 
Reserves or Air National Guard in order to retire.   
 
4.  He  be  retired  in  the  grade  of  Captain  (O-3)  for  length  of 
service.   
 
5.  He be retired under the Career Status Bonus Redux Program. 
 
6. Item 28, reason for discharge, on his DD Form 214, be changed 
from misconduct to service met for retirement.   
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
Violation  of  his  Fourth  Amendment  rights  during  the  discovery 
procedures  resulted  in  violation  of  his  Fifth  Amendment  right 
for  due  process.    “Prejudicial  and  irregularities”  of  the  case 
were  the  result  of  bad  faith  in  the  discharge  proceedings  with 
all  parties  involved.    Slanderous  and  cruel  statements  were 
written  falsely  and  used  against  him  in  the  discharge 
proceedings.    The  presiding  officer  of  the  Article  32  hearing 
acted in bad faith.   
 
During  the  18  March  2006  interrogation  interview  the 
investigating officers illegally seized evidence he had torn and 
crumbled  up  that  was  not  his  official  or  unofficial  statement.  
The  officers  demanded  he  give  them  his  property  (the  torn  and 
crumbled  statement)  because  the  JAG  officer  told  them  to  take 
it.    The  decision  to  punish  him  was  made  on  the  basis  of  an 
illegally  obtained  confession  to  which  he  did  not  agree.    The 

evidence  used  in  the  Article  15  UCMJ  proceeding  was  illegally 
obtained, tainted and should have been excluded from the Article 
15 authority’s consideration of his case.   
 
In  support  of  his  request,  the  applicant  provides  a  thirteen-
page personal statement with attachments.   
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit A.  
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
The  applicant  is  a  former  commissioned  officer  of  the  Regular 
Air  Force  who  served  from  1  March  2001  through  21  September 
2007.    He  was  progressively  promoted  to  the  rank  of  Captain 
(Capt), (O-3), with an effective date of 2 March 2005.   
 
On  20  September  2006,  the  applicant’s  commander  offered  him 
nonjudicial punishment proceedings under Article 15 UCMJ for one 
specification  of  a  violation  of  Article  112a,  wrongful  use  of 
marijuana,  between  on  or  about  7 February 2006  and  on  or  about 
8 March 2006.  The applicant consulted counsel, waived his right 
to  trial  by  court-martial  and  accepted  the  Article  15 
proceedings.  He elected to make a written presentation but did 
not  request  a  personal  appearance  before  the  commander.    On 
30 September  2006,  the  commander  determined  the  applicant  did 
commit  the  offense  and  the  applicant  was  charged  under  Article 
15 UCMJ.  The applicant’s imposed punishment was a reprimand and 
forfeiture of $2, 620.00 per month for two months.  Forfeitures 
in  excess  of  $2,  120.00  pay  per  month  for  two  months  were 
suspended  until  29  March  2007,  after  which  time  it  would  be 
remitted  without  further  action,  unless  sooner  vacated.    The 
applicant did not appeal the commander’s decision.  The Article 
15  proceedings  were  reviewed  and  determined  to  be  legally 
sufficient.   
 
On  20  November  2006  the  applicant’s  commander  recommended  the 
wing  commander  consider  administrative  discharge  action  against 
the  applicant  with  an  Under  Other  Than  Honorable  Conditions 
(UOTHC) characterization of service, under the provisions of AFI 
36-3206,  Administrative  Discharge  Procedures  for  Commissioned 
Officers,  chapter  3,  paragraph  3.6.3.,  illegal  drug  use.    The 
recommendation was found to be factually and legally `sufficient 
and  on  14  December  2006,  a  Show  Cause  Authority  (SCA)  was 
appointed.    On  19  December  2006,  the  SCA  initiated  discharge 
proceedings  against  the  applicant  under  the  provisions  AFI  36-
3206,  chapter  3,  paragraph  3.6.3.    The  applicant  acknowledged 
receipt  of  the  Notification  of  Show  Cause  Action  on 
5 January 2007.    On  16  January  2007,  the  applicant  submitted  a 
conditional  waiver  of  Board  of  Inquiry  (BOI)  hearing  in 
accordance  with  AFI  36-3207,  Separating  Commissioned  Officers, 
paragraph  2.30.    In  the  requested  waiver  the  applicant 

 

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acknowledged  his  rights  to  present  his  case  before  an 
administrative  discharge  board,  be  represented  by  military 
counsel,  and  submit  statements  in  his  own  behalf  to  be 
considered  by  the  administrative  discharge  board  and  the 
separation  authority.    The  applicant  offered  a  conditional 
waiver  of  his  right  to  a  board  hearing  contingent  upon  the 
Secretary  of  the  Air  Force  approving  no  less  than  an  under 
honorable  conditions  (general)  characterization  of  service.  
After  a  thorough  review  of  the  case  file,  the  SCA  recommended 
the applicant’s conditional waiver of BOI be accepted and he be 
separated  with  an  under  honorable  conditions  (general)  service 
characterization.   
 
Subsequent to the case being found legally sufficient to support 
the  SCA’s  recommendation  the  applicant  was  discharged  from 
active  duty  with  an  under  honorable  conditions  (general) 
characterization  of  service  and  a  narrative  reason  for 
separation  of  misconduct  and  a  separation  code  of  GKK.  He  was 
credited  with  6  years,  6 months,  and  21  days  of  active  duty 
service.   
 
The  applicant  submitted  an  appeal  for  upgrade  of  his  discharge 
and  change  of  the  narrative  reason  for  discharge  to  the  Air 
Force  Discharge  Review  Board  (AFDRB).    He  was  offered  and 
declined  a  personal  appearance  before  the  AFDRB,  with  counsel.  
On  4  February  2011,  the  AFDRB  found  neither  evidence  of  record 
nor that provided by the applicant substantiated an inequity or 
impropriety  that  would  justify  a  change  of  his  discharge.    The 
DRB  concluded  that  the  discharge  was  consistent  with  the 
procedural  and  substantive  requirements  of  the  discharge 
regulation  and  was  within  the  discretion  of  the  discharge 
authority 
full 
administrative  due  process.    In  view  of  the  forgoing  findings 
the  Board  further  concluded  there  was  no  legal  or  equitable 
basis  for  upgrade  of  discharge,  and  determined  the  applicant’s 
discharge  should  not  be  changed.    On  21  March  2011,  the 
applicant  was  advised  that  since  his  case  was  denied  by  the 
AFDRB  he  had  the  right  to  appeal  to  the  Air  Force  Board  for 
Correction of Military Records (AFBCMR).   
 
________________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
AFLOA/JAJM recommends denial.  JAJM states the applicant argues 
that  the  underlying  Article  15  was  based  on  evidence  illegally 
obtained  and  should  therefore,  be  set-aside;  as  the  Article  15 
was  the  basis  for  the  administrative  discharge,  the 
administrative  discharge  should  be  upgraded  to  an  honorable 
discharge  in  the  form  of  the  retirement  he  would  have  earned, 
had he been allowed to serve out the remaining term of service.   
 
The applicant alleges injustice in that, when apprehended for a 
random,  positive  urinalysis  and  interviewed  by  the  Air  Force 

applicant 

provided 

was 

and 

that 

the 

 

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Office  of  Special  Investigation  (AFOSI),  he  drafted  a  written 
confession  that  he  then  decided  against  and  crumpled  up.    He 
alleges  that  on  the  advice  of  a  judge  advocate,  the  AFOSI 
investigator  retrieved  the  crumbled  up,  written  confession 
against  his  will.    While  the  applicant  alleges  the  confession 
was  illegally  obtained,  he  does  not  allege  error  in  how  the 
Article 15 was processed.  The Military Rules of Evidence, other 
than  with  respect  to  privileges,  do  not  apply  at  nonjudicial 
punishment proceedings.  The commander offering the nonjudicial 
punishment is free to consider any relevant matter regarding the 
alleged  crime.    Conversely,  if  the  applicant  determines  the 
rules  of  evidence  would  operate  to  provide  a  more  favorable 
portrayal of the facts and circumstances surrounding the alleged 
misconduct, his recourse would be to turn down an offer for an 
Article 15 and demand a trial by court martial and proof beyond 
a reasonable doubt.  
 
The applicant does not make a compelling argument that the Board 
should overturn the commander’s original, nonjudicial punishment 
decision  on  the  basis  of  injustice.    The  applicant  elected  the 
Article  15  forum,  where  the  Military  Rules  of  Evidence  do  not 
apply  to  exclude  otherwise  relevant  information  for  the 
commander’s  consideration.    Moreover,  there  was  sufficient, 
relevant  evidence  available  to  the  commander,  notwithstanding 
the  applicant’s  written  confession,  to  support  the  commander’s 
conclusion  in  the  Article  15  action.    The  applicant  willingly 
chose  the  Article  15  forum,  as  opposed  to  a  trial  by  court-
martial, and at the time the commander made his finding of guilt 
and imposed punishment, the applicant elected not to appeal the 
decision  to  a  higher  authority.    Therefore,  the  commander’s 
ultimate  decision  is  firmly  based  on  the  evidence  of  the  case 
and  the  punishment  decision  was  well  within  the  limits  of  the 
commander’s  authority  and  discretion.    The  applicant  has  not 
shown a clear error or injustice.   
 
The complete AFLOA/JAJM evaluation is at Exhibit C. 
 
AFPC/DPSOS recommends denial.  DPSOS states the applicant’s case 
file  supports  the  characterization  of  discharge  as  under 
honorable  conditions  (general).    An  honorable  discharge  is 
appropriate  when  an  applicant’s  military  record  warrants  the 
highest  or  best  type  of  discharge.    An  under  honorable 
conditions  (general)  discharge  is  appropriate  when  an 
applicant’s  military  record  is  not  sufficient  to  warrant  an 
honorable  discharge,  but  is  not  negative  enough  to  warrant  an 
under  other  than  honorable  conditions  (UOTHC)  discharge.    A 
UOTHC  discharge  is  appropriate  when  an  applicant’s  military 
record  warrants  the  least  favorable  service  characterization.  
Based  on  the  documentation  on  file  in  the  master  personnel 
records,  the  discharge  was  consistent  with  the  procedural  and 
substantive  requirements  of  the  discharge  regulation  and  was 
within the discretion of the discharge authority to include the 
characterization of discharge.  The applicant did not submit any 

 

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evidence  or  identify  any  errors  or  injustices  in  the  discharge 
processing.   
 
The complete AFPC/DPSOS evaluation is at Exhibit D.  
 
AFPC/DPSOR  recommends  denial.    DPSOR  states  they  conducted  an 
extensive  review  of  the  information  received,  along  with  the 
applicant’s records and found evidence to indicate the applicant 
was  afforded  every  opportunity  to  make  an  election  for  Career 
Status Bonus (CSB) during the normal election period.  According 
to  the  military  personnel  database  system  (MilPDS)  and  Defense 
Finance  and  Accounting  System  (DFAS)  the  applicant  elected  CSB 
on 21 March 2006 and was paid a lump sum of $30,000 on 31 July 
2006.        Based  on  the  documentation  on  file  in  the  master 
personnel  records,  applicant’s  characterization  of  service  will 
not up be upgraded.  Therefore, the applicant will not be given 
the opportunity to retire under the CSB Redux Program.   
 
The complete AFPC/DPSOR evaluation is at Exhibit E.  
 
AFPC/JA recommends denial.  AFPC/JA states they concur with the 
AF/JAJM and AFPC/DPSOS advisories.    The applicant’s allegation 
that  his  waiver  request  and  his  general  discharge  are  illegal 
because of the taint of the illegal confession is spurious.  The 
exclusionary rule regarding the inadmissibility of an illegally 
obtained  confession  applies  only  to  criminal  proceedings  not 
Article  15  punishments  or  administrative  discharge  proceedings.  
This  allegation  is  totally  without  merit.    Moreover,  the  basis 
for  the  initiation  of  AFI  36-3206  discharge  was  drug  usage  as 
established  by  the  urinalysis  results,  not  applicant’s 
confession.    Finally,  as  with  the  Article  15,  had  applicant 
wanted  to  litigate  this  or  any  issue  relevant  to  his  pending 
administrative  discharge,  the  proper  avenue  was  to  raise  his 
challenges  at  a  Board  Of  Inquiry.    Instead,  after  consultation 
with  his  defense  counsel,  he  chose  to  waive  such  a  board  in 
return for a general discharge.   
 
The  applicant’s  conditional  waiver  offer  resulted  in  an 
agreement in which both the applicant and the government agreed 
to forgo the dynamics of a hearing where all the facts and legal 
issues could have been fully developed and adjudicated in favor 
of  the  settled  prospect  of  an  administrative  disposition  that 
guaranteed  the  applicant  a  general  rather  than  an  UOTHC 
discharge  and  which  the  applicant  obviously  believed  to  be  in 
his best interest at that time.  The AFBCMR should not allow the 
applicant  to  use  his  waiver  request  to  halt  the  established 
administrative  process  to  determine  factual  and  legal  issues, 
and thereafter, under the guise of an allegation of unfairness, 
engage in one-sided litigation (the government not being a party 
in  this  action)  of  the  same  matters  before  the  BCMR  in 
contravention  of  the  offer  accepted  in  good  faith  by  the  Air 
Force.   
 

 

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Regarding  his  allegation  that  bad  faith  caused  prejudicial  and 
irregularities of the case, the applicant essentially reiterates 
in another form the arguments discussed above.  Needless to say, 
the  applicant  has  failed  to  allege  and  prove  any  specific  acts 
of  bad  faith  on  the  part  of  any  Air  Force  official  that 
prejudiced  his  case.    Moreover,  allegations  relating  to  the 
behavior  of  the  Investigating  Officer  in  an  Article  32,  UCMJ 
hearing  are  irrelevant  to  the  legal  sufficiency  of  the  Article 
15  punishment  and  administrative  discharge  proceedings.    The 
same  is  true  of  his  claim  of  slanderous  statements  regarding 
homosexuality;  the  basis  for  the  Article  15  and  the  discharge 
had  nothing  to  do  with  homosexuality  and  was  limited  to  drug 
use.  For the reasons stated in this and the other advisories, 
we  conclude  that  the  applicant  has  failed  to  prove  by  material 
and relevant evidence any error or injustice in his application.   
 
The complete AFPC/JA evaluation is at Exhibit F.  
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
Copies  of  the  Air  Force  evaluations  were  forwarded  to  the 
applicant on 29 May 2012 for review and comment within 30 days 
(Exhibit G).  To date, this office has not received a 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 error or injustice.  We took notice 
of the applicant’s complete submission in judging the merits of 
the case; however, we agree with the opinion and recommendation 
of  the  Air  Force  offices  of  primary  responsibility  and  adopt 
their  rationale  as  the  basis  for  our  conclusion  that  the 
applicant  has  not  been  the  victim  of  an  error  or  injustice.    
Therefore,  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 issues involved.  
Therefore,  the  request  for  a  hearing  is  not  favorably 
considered. 
 
________________________________________________________________ 

 

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  Panel Chair 
  Member 
  Member 

 
THE BOARD DETERMINES THAT: 
 
The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate  the  existence  of  material  error  or  injustice;  that 
the  application  was  denied  without  a  personal  appearance;  and 
that  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  this  application 
BC-2012-00657  in  Executive  Session  on  11  September  2012,  under 
the provisions of AFI 36-2603: 
 
 
 
 
The following documentary evidence was considered: 
 
    Exhibit A.  DD Form 149, dated 31 January 2012, w/atchs. 
    Exhibit B.  Applicant’s Master Personnel Records 
    Exhibit C.  Letter, AFLOA/JAJM, dated 30 March 2012. 
    Exhibit D.  Letter, AFPC/DPSOS, dated 5 April 2012. 
    Exhibit E.  Letter, AFPC/DPSOR, dated 25 April 2012. 
    Exhibit F.  Letter, AFPC/JA, dated 16 May 2012. 
    Exhibit G.  Letter, SAF/MRBR, dated 29 May 2012. 
    Exhibit H.  Report of Investigation (withdrawn). 
 
 
 
 
                                     
                                   Panel Chair 
 

 

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