RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02927
		
	 	COUNSEL:  

		HEARING DESIRED:  NO



APPLICANT REQUESTS THAT:

1.  She be reinstated in the Air Force.  

2.  If not reinstated, her general (under honorable conditions) be upgraded to honorable.  

3.  Her reentry (RE) code 2B (separated with a general or under-other-than-honorable conditions (UOTHC) discharge), be changed to RE code 1, to reflect a non-adverse reason for separation.  



APPLICANT CONTENDS THAT:

1.  Counsel argues her court-martial proceedings and subsequent discharge were both unfair and a result of disparate treatment from those who had committed similar offenses in her unit.  Specifically, a member of her unit was involved in an on base accident and damaged government property while under the influence of alcohol.  He received an Article 15 and his driving privileges revoked for one year; however, he was able to deploy and was not discharged.  Another member was stopped on base for driving under the influence (DUI) of alcohol and he was separated with an honorable discharge.  

2.  Counsel argues there is no evidence of any other airman being sent to a Summary Court Martial and administratively separated for a first offense of DUI, particularly when no one was injured and no property was damaged.  During the period of the applicant’s isolated incident for which she accepted responsibility, 38 airmen were involved in alcohol related driving incidents, none of which were administratively discharged based solely on their DUI incident.  

3.  Counsel argues she has been diagnosed with Post Traumatic Stress Disorder (PTSD) due to Military Sexual Trauma (MST) which may have led to her alcohol use.  Her command discharged her and never sought the underlying circumstances of her alcohol use.  

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



STATEMENT OF FACTS:

The applicant’s military personnel records indicate she enlisted in the Regular Air Force on 7 Apr 09.  

On 8 Feb 11, the applicant was convicted at a Summary court-martial for violating Articles 92 and 111, of the Uniform Code of Military Justice (UCJM); specifically, for the failure to refrain from consuming alcohol while under the age of twenty-one years old and physically controlling a vehicle while drunk.  She pled guilty and was found guilty.  She was sentenced to confinement for seven days, reduction in grade to Airman Basic (E-1), and a reprimand.  

On 18 Feb 11, the convening authority approved the sentence to be executed.  The term of confinement having been served, no place of confinement was designated.  

On 1 Apr 11, the applicant’s commander notified her that he was recommending her discharge from the Air Force for Misconduct:  Commission of a Serious Offense, Other Serious Offenses for the offenses resulting from her Summary court-martial conviction.  

On 8 Apr 11, the applicant acknowledged receipt of the discharge action and, after consulting with legal counsel, submitted a statement in her own behalf.  

On 18 Apr 11, the discharge authority directed the applicant be furnished a general (under honorable conditions) discharge, without probation and rehabilitation.  

On 26 Apr 11, the applicant was furnished a general (under honorable conditions) discharge for Misconduct (Serious Offense) and was credited with 2 years and 20 days of total active service.

On 5 Jul 12, the Air Force Discharge Review Board (AFDRB) considered the applicant’s request to upgrade her discharge to honorable, to change the reason and authority for the discharge, and to change the reenlistment code.  The board concluded the discharge was consistent with the procedural and substantive requirements of the discharge regulation, was within the discretion of the discharge authority, and the applicant was provided full administrative due process.

The remaining relevant facts pertaining to this application are described in the letters prepared by the Air Force offices of primary responsibility (OPRs) which are included at Exhibits C, D, and E.



AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial, indicating there is no evidence of an error or injustice.  In accordance with AFI 36-3208, Administrative Separation of Airmen, airmen are subject to discharge for commission of a serious offense, if the specific circumstances of the offense merit separation.  In this case, the offenses in which the applicant was found guilty by Summary court-martial warranted discharge and due to the seriousness of her misconduct, she does not deserve an honorable discharge.  The applicant was appropriately issued a general discharge since the significant negative aspects outweighed the positive aspects of her military career.  Furthermore, the applicant did not receive a discharge as part of her court-martial sentence; it was based on the acts of her misconduct.  The documentation on file in her master personnel record supports the basis for discharge.  Lastly, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority.  

A complete copy of the AFPC/DPSOR evaluation is at Exhibit C.  

AFPC/DPSOA recommends denial.  The applicant provides no evidence of an error or injustice with respect to her RE code.  The RE code issued is required in accordance with AFI 36-2606, Reenlistment in the United States Air Force, based on the nature of her separation.  If the applicant is granted reinstatement, her appropriate RE code will be determined at the time of reinstatement processing.  Also, if the applicant’s character of service is upgraded to honorable, her RE code should be automatically changed at that time to 2C (Involuntarily separated with an honorable discharge; or entry level separation without characterization of service).  Lastly, if the applicant’s reason for separation is changed to a non-adverse reason for separation, her RE Code should be automatically changed at that time to 3A (First-term airman who separates before completing 36 months (60 months for 6-year enlistee) on current enlistment and who has no known disqualifying factors or ineligibility conditions except grade, skill level, and insufficient total active federal military service.  Although, the applicant’s attorney requests her RE code to be changed to a “1”, the RE code 3A is what any other Air Force member separating with her grade and time in service would be awarded if the reason for separation was not for adverse reasons.  

A complete copy of the AFPC/DPSOA evaluation is at Exhibit D.  
AFLOA/JAJM recommends approval of the applicant’s request for her general (under honorable conditions) discharge to be upgraded to honorable, given her apparent disparate treatment.  The applicant was convicted at a Summary Court-Martial and was subsequently discharged for commission of a serious offense, and the basis of her discharge were due to her conviction for underage drinking and driving while drunk.  The applicant contends she received disparate treatment from those who had committed similar offenses within her unit.  The first member she indicated was discharged with a general (under honorable conditions) for a series of misconduct, to include the offenses he received the Article 15 and an additional charge of adultery.  Although the second member mentioned was involved in an alcohol related driving incident on base, he did not have any other adverse records.  However, after serving the remainder of his enlistment, he was honorably discharge for a mental disorder.  There is nothing to refute the applicants assertion that there were 38 other alcohol related driving offenses during the period she indicated, and no other offenders were discharged solely for alcohol related driving offenses.  Anecdotal evidence is that cases where a first offense for underage drinking and drunk driving results in a Summary Court-Martial and subsequent discharge solely for the court-martial offense are rare.  In accordance with the Automated Military Justice Analysis & Management System (AMAJMS), the applicant was not offered punishment under Article 15, but rather her commander decided to take the offense to a Summary Court-Martial.  The applicant had the right to turn down the Summary court and demand trial by a higher court; however, she would be subjected to a greater punishment.  She decided to accept the Summary Court-Martial forum and pled guilty.  It appears the applicant was treated differently than others similarly situated.  However, the actions were certainly legally sufficient and it appears all actions taken against her were viable options for the commander. 
 
A complete copy of the AFLOA/JAJM evaluation is at Exhibit E.  



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel indicates the Air Force Personnel Center’s opinion comes to no surprise to him.  There were no procedural deficiencies in the processing of the applicant’s case.  He argues the case is about equity and fundamental fairness.  The applicant, for an unknown reason, was treated far more harshly than other similarly situated members of her unit.  Her command never took into consideration the underlying cause of her drinking could be the results of her military sexual trauma.  Nevertheless, AFLOA is spot on in identifying the disparate treatment experienced by the applicant.  Therefore, the applicant’s requested relief should be granted.  

The applicant’s counsel complete submission is at Exhibit G.  



ADDITIONAL AIR FORCE EVALUATION:

SAF/MRBP reviewed the case in its entirety and determined the DRB decision to not upgrade the applicant’s discharge was consistent with DRB procedures and standards.  During the review and deliberation of the applicant’s case there were no inequities or improprieties discovered nor did the applicant present any information claiming an inequity in her punishment or that she was a victim of military sexual trauma.  Unless an inequity or impropriety is discovered during deliberations, a presumption of regularity is assumed and the discharge remains unchanged.  

A complete copy of the SAF/MRBP evaluation is at Exhibit H.  



ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel indicates the SAF/MRBP advisory does not appear to be in response to the applicant’s submitted request.  It seems to simply describe the DRB’s action in denying her application.  Nevertheless, it correctly notes that the applicant had a right to request a personal appearance before the DRB, but it was not a required.  The applicant, in filing her initial DRB application, was unrepresented and ill prepared to represent herself.  She was unfamiliar with the procedural requirements and the proof necessary to prevail in that forum.  After the applicant was notified that her DRB application was denied, she timely submitted an application to the AFBCMR for relief.  She is not only seeking a De Novo review of her request for an upgraded discharge, she seeks additional corrections in the form of reinstatement and change in reentry code.  The applicant’s counsel urges the Board to follow the recommendation of AFLOA/JAJM and grant the relief requested.  

The applicant’s counsel complete submission is at Exhibit J.  



THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of an injustice.  We took note of SAF/MRBP, AFPC/DPSOR and AFPC/DPSOA recommendation to deny based that no inequities or improprieties were discovered and that the discharge was consistent with the procedural and substantive requirements of the discharge instruction and within the discretion of the discharge authority.   However, after having carefully reviewing the applicant’s submission and the AFLOA/JAJM advisory indicating the applicant was given disparate treatment and treated differently than others similarly situated, we believe some relief is appropriate.  While the Board does not find sufficient evidence to reinstate the applicant into the military, we believe the applicant’s discharge, RE code, narrative reason with corresponding separation code should be changed in the interest of equity and justice.  While it is the applicant’s desire to be eligible for re-entry into the Air Force, the applicant should be aware that our recommendation to correct her records in no way implies that she will be allowed to return to any branch of service.  The suggested correction will allow the applicant the opportunity to seek enlistment in the service with a waiver, based on the needs of the service and provided she is otherwise qualified.  Therefore, we recommend the applicant’s records be corrected to the extent indicated below.  



THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 26 April 2011, she was honorably discharged with a narrative reason for separation of “Secretarial Authority” rather than for “Misconduct (Serious Offense)”, and issued a separation program designator (SPD) code of “JFF” rather than “JKQ”, and a Reentry (RE) code of “3K” rather than “2B”. 



The following members of the Board considered AFBCMR Docket Number BC-2013-02927 in Executive Session on 16 Sep 14 and 25 Sep 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-02927 was considered:

	Exhibit A.  DD Form 149, dated 10 Jun 13, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSOR, dated 1 Aug 13.
	Exhibit D.  Letter, AFPC/DPSOA, dated 30 Oct 13.
	Exhibit E.  Letter, AFLOA/JAJM, dated 20 Dec 13.
	Exhibit F.  Letter, SAF/MRBR, dated 31 Mar 14.
	Exhibit G.  Letter, Counsel, dated 11 Apr 14.
	Exhibit H.  Letter, SAF/MRBP, dated 13 Jun 14.
	Exhibit I.  Letter, SAF/MRBR, dated 26 Jun 14.
	Exhibit J.  Letter, Counsel, dated 30 Jun 14.