RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-04716
		COUNSEL:  
		HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

His Under Other Than Honorable Conditions (UOTHC) discharge be 
upgraded to honorable.


APPLICANT CONTENDS THAT:

His discharge was inequitable because it was based on one incident 
over five years of active duty service. 
He appealed to the Air Force Discharge Review Board (AFDRB) for an 
upgrade of his UOTHC discharge to an honorable discharge and a 
change to his narrative reason for separation and reenlistment 
code.  The AFDRB concluded his discharge was based on three 
different events; however, this was a false conclusion, as his 
discharge was based on one isolated incident.  
In support of his request, the applicant submits a personal 
statement, copies of DD Forms 293, Application for the Review of 
Discharge from the Armed Forces of the United States; AFHQ Form 0-
2077, AFDRB Hearing Record and various other documents associated 
with his appeal.  
The applicant’s complete submission, with attachments, is at 
Exhibit A.


STATEMENT OF FACTS:

On 8 Jul 93, the applicant entered the Regular Air Force.  
According to DD Form 458, Charge Sheet, on 4 Dec 97, the applicant 
was charged with two specifications of assault in violation of 
Article 128, Uniform Code of Military Justice (UCMJ).  The 
specifications are as follows:
Specification 1:  Unlawfully pushing his spouse to the ground 
with his hands and placing his hands over her mouth. 
Specification 2:  Striking his spouse in the face with his 
hand.

On 5 Dec 97, the wing commander directed that an Investigating 
Officer (IO) be appointed to investigate the charge and 
specifications preferred against the applicant.
According to DD Form 458, on 22 Dec 97, the wing commander 
referred the charge and specifications to trial by SPCM.  
According to a 21st Air Force/JA (21 AF/JA) memorandum dated 
28 Jan 98, a trial date was set for 3 Feb 98.  
On 20 Jan 98, the applicant, after consulting with counsel 
submitted a request for administrative discharge in lieu of trial 
by court-martial.  He acknowledged that he could receive an UOTHC, 
if his request was approved.  Additionally, he noted he was aware 
of the adverse nature of the discharge, the possible consequences 
thereof and that he may be deprived of veteran’s benefits. 
On 22 Jan 98, the applicant’s spouse submitted a letter stating in 
part that she was under a great deal of stress and did not wish to 
testify.  
On 23 Jan 98, the applicant’s counsel submitted a letter, noting 
that due to the applicant’s spouses desire not to testify; her 
credibility; her initiation of violence; and her injuries, it 
would be in the best interest of the Air Force, his spouse 
(alleged victim) and the applicant that he be discharged from the 
Air Force in lieu of trial by court-martial and be granted a 
general (under honorable conditions) discharge.  
On 27 Jan 98, the applicant’s squadron commander recommended to 
the wing commander that the applicant’s request for discharge in 
lieu of trial by court-martial be approved.  The commander noted 
the applicant’s inability to effectively deal with his marital 
problems had evolved to the point where it had a severe impact on 
the good order and discipline of the squadron and the Air Force.  
The wing commander reviewed the case and recommended the 21 AF/CC 
approve the applicant’s request for discharge in lieu of trial by 
court-martial and ordered that he be discharged with an UOTHC 
discharge. 
On 28 Jan 98, the 21 AF/JA reviewed the case and found it to be 
legally sufficient to support an UOTHC discharge.  The Staff Judge 
Advocate (SJA) noted that the applicant’s spouse was refusing to 
cooperate any further with the prosecution.  Also, the evidence 
indicated the applicant and his spouse were engaged in a mutual 
affray.  
On 29 Jan 98, the 21 AF/CC accepted the applicant’s request for an 
administrative discharge in lieu of trial by court-martial and 
directed he be discharged and given an UOTHC discharge.  
On 10 Feb 98, the applicant was discharged for offenses Triable by 
Court-Martial with service characterized as UOTHC.  He served four 
years, seven months and three days of total active service. 
On 1 Jan 13, the applicant submitted a DD Form 293 for an upgrade 
to his discharge, to change his narrative reason for separation 
and to change his reenlistment code.  
According to AFHQ Form 0-2077, Air Force Discharge Review Board 
(AFDRB) Hearing Record dated 6 Jun 13, the applicant was offered, 
but declined, a personal appearance before the board and requested 
that the review be completed based on the available service 
record.  The AFDRB considered and denied the applicant’s appeal.  
The AFDRB noted that if the applicant could provide additional 
documented information to substantiate his issues, he should 
consider exercising his right to make a personal appearance before 
the board.  Also, the AFDRB noted that if the applicant chose to 
exercise this right, he should be prepared to provide the AFDRB 
with factual evidence of the inequity/impropriety and any 
exemplary post-service accomplishments as well as any 
contributions to the community.  
Further, the AFDRB found that the discharge was consistent with 
the procedural and substantive requirements of the discharge 
regulation and was within the discretion of the discharge 
authority and he was provided full administrative due process.  On 
13 Jun 13, the applicant was notified of the AFDRB’s decision.
On 11 Jul 13, the applicant filed a second appeal to the AFDRB and 
requested a personal appearance.  On 18 Jul 13, the applicant was 
informed that his most recent application could not be processed 
by the AFDRB because his date of separation (10 Feb 98) was past 
the AFDRB’s 15 year time limit to process his case and advised him 
to submit his request to the Board.  

Pursuant to the Board’s request, the Federal Bureau of 
Investigation (FBI) indicated that on the basis of the information 
provided, they were unable to locate an arrest record. 


THE BOARD CONCLUDES THAT:

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

2.  The application was not timely filed; however, it is in the 
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or 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 or 
injustice that occurred in the discharge processing.  Based on the 
available evidence of record, it appears the discharge was 
consistent with the substantive requirements of the discharge 
regulation and within the commander's discretionary authority.  
The applicant has provided no evidence, which would lead us to 
believe the characterization of the service was contrary to the 
provisions of the governing regulation, unduly harsh, or 
disproportionate to the offenses committed.  In the interest of 
justice, we considered upgrading the discharge on the basis of 
clemency; however, after considering his overall record of 
service, the infractions which led to his administrative 
separation and the lack of post-service information we are not 
persuaded that an upgrade is warranted on that basis.  In view of 
the above and absence of evidence to the contrary, we find no 
basis upon which 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 issues involved.  
Therefore, the request for a hearing is not favorably considered.


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.


The following members of the Board considered AFBCMR Docket Number 
BC-2013-04716 in Executive Session on 7 Aug 14, under the 
provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 20 Aug 13, w/atchs.
	Exhibit B.  Applicant’s Master Personnel Records.

						


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