RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-04598
	XXXXXXXXXXXXXX	COUNSEL:
		HEARING DESIRED:  YES

______________________________________________________________

APPLICANT REQUESTS THAT:

1.  His discharge be upgraded from general (under honorable 
conditions) to honorable.

2.  His Reentry (RE) code “2B,” which denotes "Approved 
Involuntary Separation with Less Than Honorable Discharge,” be 
changed.

3.  His narrative reason for separation be changed from 
“Misconduct (Minor Infractions),” to “Secretarial Authority.” 

________________________________________________________________

APPLICANT CONTENDS THAT:

In an 11-page memorandum, the applicant’s counsel presents the 
following major contentions:

The applicant was only 21 years of age, understandably immature, 
and unaware of the consequences of using a substance like 
“Spice.”  “Spice” has very recently been introduced to American 
consumers, and viewed as harmless.  In his response to the 
discharge notification, he freely admitted his mistakes, 
apologized, and accepted responsibility.

He self-referred and was not directed into a drug and alcohol 
program.  Notwithstanding his successful completion of a 28-day 
inpatient drug and alcohol treatment program, he was discharged 
and not provided an opportunity to determine his rehabilitative 
potential.  This action will deter other service members from 
seeking help for fear that disciplinary action will also be 
taken in their case.

His involuntary separation action was directly related to his 
participation in the 28-day inpatient program as evidenced by 
the fact he completed the program on 3 Nov 2010.  The statement 
from his supervisor concerning his admitted use of "Spice" was 
not taken until 10 Dec 2010 - two months after the fact and used 
as a pretext to initiate the involuntary separation action on 
4 Jan 2011.  He admitted and accepted responsibility for using 
“Spice,” however, the issue only became known because he "sought 
help" from his supervisor.  In accordance with AFI 44-121, 
Alcohol and Drug Abuse Prevention and Treatment (Adapt) Program, 
paragraph 3.7.1.3, such communication was protected limited use 
information.

In support of his request, the applicant provides an 11-page 
Memorandum of Facts, Law and Argument, with 18 exhibits and 
various other documents associated with his request.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 5 Aug 2008, the applicant enlisted in the Regular Air Force.

On 4 Jan 2011, his commander notified him he was recommending 
his discharge from the Air Force under the provisions of AFPD 
36-32, Military Retirements and Separations, and AFI 36-3208, 
Administrative Separation of Airmen, for Misconduct: Minor 
Disciplinary Infractions.  The specific reasons for his action 
are reflected in the Notification Memorandum at Exhibit B.

On 4 Jan 2011, he acknowledged receipt of the discharge 
notification and was afforded the opportunity to submit 
statements in his own behalf.

On 7 Jan 2011, the discharge authority approved the applicant’s 
administrative discharge and determined his service should be 
characterized as general (under honorable conditions).  In 
making his determination, he did not consider the applicant’s 
self-identified drug abuse.

In an undated letter, the Staff Judge Advocate found the 
discharge legally sufficient.

On 25 Jan 2011, he was discharged from the Air Force, with 
service characterized as general (under honorable conditions).  
His narrative reason for separation is “Misconduct (Minor 
Infractions).”  He served 2 years, 5 months, and 21 days of 
total active service.

On 14 Apr 2011, the applicant submitted a request to the Air 
Force Discharge Review Board (AFDRB) for an upgrade to his 
discharge.

On 23 Jul 2012, the applicant was notified that the AFDRB 
considered his application and concluded a change in the type or 
nature of his discharge was not warranted and his application 
was denied.

________________________________________________________________



THE AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial of the applicant’s request to 
change his separation code and narrative reason for separation.  
DPSOR states that based on his overall performance, the 
discharge authority approved a general (under honorable 
conditions) discharge.  According to AFI 36-3208, paragraph 
1.18.2, a general discharge is appropriate when "significant 
negative aspects of the airman's conduct or performance of duty 
outweighs positive aspects of the airman's military record."  
His misconduct in this case clearly outweighed the positive 
aspects of his service.  The commander stated that prior to 
recommending the discharge; the applicant had received two 
Letters of Reprimand and five Letters of Counseling.  Given the 
applicant's misconduct, including a failure to comply with 
regulations, threatening other military individuals and other 
minor offenses under the Uniform Code of Military Justice, his 
commander recommended a discharge characterization of general 
(under honorable conditions).  The applicant demonstrated a lack 
of respect for authority and a total disregard for policies and 
procedures constantly throughout his training. His record 
further shows he was counseled on numerous occasions for his 
behavior and afforded an opportunity to overcome his 
deficiencies.  His incidents of misconduct disrupted good order, 
discipline, and morale within the military community; hence, 
discharge was appropriate.  His discharge to include his RE code 
and narrative reason for separation was consistent with the 
procedural and substantive requirements of the discharge 
instruction and was within the discretion of the discharge 
authority.  The applicant did not provide any evidence of an 
error or injustice that occurred in the discharge processing.

The complete DPSOR evaluation is at Exhibit C.

AFPC/DPSOA recommends denial of the applicant’s request to 
change his RE code.  DPSOR states that this RE code of 2B is 
required per AFI 36-2606, Reenlistments in the USAF, based on 
his involuntary discharge with general (under honorable 
conditions) character of service.

The complete DPSOA evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

Counsel states that the advisory opinions do not address any of 
the twenty issues raised in the Memorandum of Facts, Law and 
Argument dated 27 Sep 2012, previously submitted to the Board.  
Counsel further asserts that the manner and procedure relied 
upon to involuntarily separate him from active duty violated his 
Constitutional Fifth Amendment right to adequate due process.

In further support of his request, counsel provides a statement 
and a copy of the Memorandum of Facts, Law and Argument dated 
27 Sep 2012.

His complete response with attachments is at Exhibit F.

________________________________________________________________

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.  Counsel 
contentions that the advisory opinions do not address any of the 
twenty issues raised in the Memorandum of Facts, Law and 
Argument dated 27 Sep 2012 are duly noted.  However, based on 
the available evidence of record, we do not find these 
uncorroborated assertions, in and by themselves, sufficiently 
persuasive to override the evidence of record or the rationale 
provided by the Air Force. Although counsel states that the 
applicant’s Fifth Amendment rights were violated, we found no 
impropriety in the characterization of applicant's discharge and 
it appears that the responsible officials applied appropriate 
standards in effecting the separation, and the applicant has not 
provided persuasive evidence demonstrating that pertinent 
regulations were violated or that he was not afforded all the 
rights to which entitled at the time of discharge.  As indicated 
by DPSOR, the applicant’s misconduct clearly outweighed the 
positive aspects of his service.  Therefore we agree with the 
opinions and recommendations of the Air Force and adopt the 
rationale expressed as the basis for our decision that the 
applicant has failed to sustain his burden that he has suffered 
either an error or an injustice. Therefore, we find no basis to 
recommend granting the relief sought. 

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.

________________________________________________________________

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 
in Executive Session on 16 Jul 2013, under the provisions of AFI 
36-2603:

     , Panel Chair
     , Member
     , Member

The following documentary evidence was considered in AFBCMR BC-
2012-04598:

    Exhibit A.  DD Form 149, dated 25 Sep 2012, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSOR, 28 Nov 2012.
    Exhibit D.  Letter, AFPC/DPSOA, 4 Jan 2013.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Jan 2013.
    Exhibit F.  Letter, Counsel, dated 12 Feb 2013.




                                   
                                   Panel Chair