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 applicants 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 veterans benefits.
On 22 Jan 98, the applicants 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 applicants counsel submitted a letter, noting
that due to the applicants 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 applicants squadron commander recommended to
the wing commander that the applicants request for discharge in
lieu of trial by court-martial be approved. The commander noted
the applicants 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 applicants 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 applicants 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 applicants 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 applicants 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 AFDRBs 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 AFDRBs 15 year time limit to process his case and advised him
to submit his request to the Board.
Pursuant to the Boards 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 applicants 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. Applicants Master Personnel Records.
1
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