4
‘ AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD
]
NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) GRADE AFSN/SSAN
ea Ss@T J,
TYPE
PERSONAL APPEARANCE X RECORD REVIEW
COUNSEL NAME OF COUNSEL AND OR ORGANIZATION ADDRESS AND OR ORGANIZATION OF COUNSEL
YES. NO
x
+ VOTE OF THE BOARD
MEMBERS SITTING HON GEN UOTHC OTHER | DENY |
X
xX
rl a = —1,
x
[x
“> |
X
ISSUES INDEX NUMBER EXHIBITS SUBMITTED TO THE BOARD |
A94.05 A61.00 1 | ORDER APPOINTING THE BOARD
2 | APPLICATION FOR REVIEW OF DISCHARGE
3 | LETTER OF NOTIFICATION _|
HEARING DATE ~~) EASE NUMBER 4 | BRIEF OF PERSONNEL FILE
4 NOV 02 FD2002-0219 COUNSELS RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF
PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPERANCE HEARING |

 

 

 

 

 

 

 

APPLICANT'S ISSUE AND THE BOARD'S DECISIONAL RATIONAL ARE DISCUSSED ON THE ATTACHED AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE.

 

 

REMARKS |

Case heard at Washington, D.C.

Advise applicant of the decision of the Board, the right to a personal appearance with/without counsel, and the right to
submit an application to the AFBCMR.

    
 
 

 

SIGNATURE OF RECORDER

  
   

INDORSEMENT

DATE: 4 NOV 02

 

 

 

 

TO: FROM:

SAF/MIBR SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL
550 C STREET WEST, SUITE 40 AIR FORCE DISCHARGE REVIEW BOARD
RANDOLPH AFB, TX 78150-4742 1535 COMMAND DR, EE WING, 3®° FLOOR

ANDREWS AFB, MD 20762-7002

 

 

 

 

 

AFHQ FORM 0-2077, JAN 00 (EF-V2) Previous edition will be used.
CASE NUMBER

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE FD02-0219

GENERAL: The applicant appeals for upgrade of discharge to Honorable.

The applicant was offered a personal appearance before the Discharge Review Board (DRB) but declined to
exercise this right.

The attached brief contains the available pertinent data on the applicant and the factors leading to the
discharge.

FINDINGS: Upgrade of discharge is denied.

The board finds that neither evidence of record nor that provided by the applicant substantiates an inequity
or impropriety, which would justify a change of discharge.

The applicant's issues are listed in the attached brief.

ISSUE: The applicant felt his discharge was too harsh because it was based solely on one incident. The
applicant was convicted in a civilian court of abusing and endangering the health of a child and inflicting
great bodily injury, which resulted in the death of his two year old adopted son. Applicant served
honorably for 8 years and feels that his full military record should be considered. The DRB agreed that the
applicant’s discharge was based on a single incident; however, the Board found that the seriousness of that
misconduct; Commission of a Serious Offense and a conviction, outweighs the applicant’s otherwise
satisfactory service. The Board concluded the misconduct was a significant departure from conduct of all

military members.

However, no inequity or impropriety in his discharge was suggested or found in the course of the records
review. The Board concluded that the character of and reason for discharge were appropriate due to his
misconduct.

CONCLUSIONS: The Discharge Review Board concludes 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 that the applicant was provided full administrative due process.

In view of the foregoing findings the board further concludes that there exists no legal or equitable basis for
upgrade of discharge, thus the applicant's discharge should not be changed.

Attachment:
Examiner's Brief
FD2002-0219
DEPARTMENT OF THE AIR FORCE
AIR FORCE DISCHARGE REVIEW BOARD
ANDREWS AFB, MD

(Former SSGT) (HGH SSGT)

 

1. MATTER UNDER REVIEW: Appl rec’d a UOTHC Disch fr USAF 98/04/07 UP AFI 36-
3208, para 5.56.2 (Misconduct - Civilian Conviction). Appeals for Honorable
Disch.

2. BACKGROUND:

a. DOB: 71/09/02. Enlmt Age: 17 0/12. Disch Age: 26 7/12. Educ: HS DIPL.
AFOT: N/A. A-89, E-62, G-68, M-59. PAFSC: X1A251 - Aircraft Loadmaster
Journeyman. DAS: 93/05/20.

b. Prior Svc: (1) AFRes 88/09/15 - 89/10/01 (1 Yr 17 Days) (Inactive).

(2) Enld as AB 89/10/02 for 4 yrs. Ext: 92/12/17 for 23
mos. Svd: 5 Yrs 0 Mos 12 Days. AMN - 90/04/02. Ai1C - 91/02/02. SRA - 92/10/02.
EPRs: 3,4,5,4.

3. SERVICE UNDER REVIEW:

a. Reenld as SRA 94/10/14 for 4 yrs. Svd: 3 Yrs 5 Mos 24 Das, of which AMS
is 2 Yrs 8 Mos 26 Das (ex. 8 Mos 28 Das lost time).

b. Grade Status: SSGT - 97/04/01

c. Time Lost: 10 Jul 97 - 7 Apr 98.
d. Art 15’s;: None.

e. Additional: None.

E—. CM: None.

g. Record of SV: 93/12/13 - 94/12/12 Travis AFB 5S (Annual)
94/12/13 - 95/12/12 Travis AFB 5 (Annual)
95/12/13 - 96/12/12 Travis AFB 5 (Annual)

(Discharged from Travis AFB)

h. Awards & Decs: AFAM, AFCM, AAM, AFLSA (10LC), AFTR, SASM (10LC),
AFOLTR, NDSM, HSM, CRM, NCOPMER, AFEM, AFOUTA (20LC), AFGCM (10LC).

i. Stmt of Sv: TMS: (8) Yrs (9) Mos (25) Das
TAMS: (7) Yrs (9) Mos (8) Das

4. BASIS ADVANCED FOR REVIEW: Appln (DD Fm 293) dtd 02/05/15.
FD2002-0219

(Change Discharge to Honorable)

Issue: My discharge was inequitable because it was based on one isolated
incident in 89 months of service with no other adverse action.

ATCH

1. Applicant's Letter.
2. Patten College Transcripts.

02/08/26/cer
, _ fp 2e02- O2/7
to ro

DEPARTMENT OF THE AIR FORCE
HEADQUARTERS FIFTEENTH AIR FORCE (AMC)

 

3.0 MAR 1998
MEMORANDUM FOR 15 AF/CC

FROM: 15 AF/JA

SUBJECT: Administrative Discharge miiistiic
22™ Airlift Squadron, Travis AFB CA

  

1, INTRODUCTION

   
 

a. Lreviewed the attached discharge file on the respondent@ij Se re:
find it legally sufficient to support his discharge for Misconduct ~ Civilian Conviction pursiar
AFI 36-3208, Section H, paragraph 5.51.

b. The basis of this action ‘SRA ion conviction. On 4 Nov 97, he was
convicted in the Superior Court of C. olano County, pursuant to his plea, of abusing and
endangering the health of a child an icting great bodily injury which resulted in the death; of
his two year old adopted acai on 1 Jun 97. He was sentenced to 7 years

confinement and a fine of $1,400.00.

    

c. 22 AS/CC initiated this action on 20 Feb 98, recommendingiAigliltat discharged
for misconduct due to a civilian conviction pursuant to AFI 36-3208, paragraph 5.51 with an _

under other than honorable conditions (UOTHC) service characterization. The respondent
received notice of this action the same day. On 20 Mar 98 ‘ap std an unconditional
waiver of his right to have his case heard by a discharge board. He also waived his right to be
represented by military counsel and to submit statements in his own behalf. On 26 Mar 98, 60
AMW/CC recommended you accept the respondent’s unconditional waiver and separate him from

the service with a UOTHC without probation and rehabilitation.
2. BASIS FOR DISCHARGE AND SERVICE CHARACTERIZATION

a. AFI 36-3208, Chapter 5 outlines the bases for involuntary separation of airmen.
Paragraph 5,51 indicates airmen are subject to discharge for a civilian conviction when either a
punitive discharge would be authorized for the same of a closely related offense under the Manual
for Courts-Martial, or the sentence by civilian authorities includes confinement for 6 months or
more without regard to suspension or probation. The respondent’s conviction meets both prongs
of this provision.

 

b. According to AFI 36-3208, paragraph 5.48.1, individuals processed for separation
under paragraph 5.51 should usually receive a UOTHC service characterization. This service
characterization is appropriate when a pattern of behavior or one or more acts or omissions _
constitutes a significant departure from the conduct expected of airmen. A general (under
honorable conditions) characterization is warranted if an airman’s service has been honest and
faithful yet significant negative aspects of the airman’s conduct or performance of duty outweigh
positive aspects of the airman’s military record. An honorable service characterization, in the
context of a misconduct-based action, ¥ is warranted only when the member’s record has been so
meritorious that any other characterization would be clearly | inappropriate. ~
3. PROBATION AND REHABILITATION (P&R)

P&R provides for a conditional suspension of an administrative discharge for cause in deserving
cases and is based on the notion that an airman can change a pattern of behavior. Airmen should
be offered the opportunity for P&R when it is reasonably possible to do so. An airman deserving
P&R is one who has demonstrated a potential to serve satisfactorily, has the capacity to be
rehabilitated, and whose retention on active duty is consistent with the maintenance of good order
and discipline.

4, LEGAL ANALYSIS AND DISCUSSION

a. The respondent was accorded the procedural and substantive rights to which he is
entitled under AFI 36-3208. However, there is one issue which requires discussion. Although the
notification letter indicates SSgt Huff “must consult legal counsel before making a decision to
waive any of [his] rights,” AFI 36-3208, paragraph 6,13.1 contains no such requirement. In fact,
it specifically lists the right to consult counsel as one of the rights that can be waived. Therefore,
the respondent’s decision not to discuss this discharge action with counsel does not in any way
affect the validity and effectiveness of his unconditional waiver. Since the case file includes the
respondent’s acknowledgment that he received a copy of the notification memorandum which
initiated this action and his receipt predates his unconditional board waiver, processing of the case
based on that waiver may continue.

b. The 26 year old respondent has been in the Air Force since 2 Oct 89. His current
enlistment began 14 Oct 94. He was assigned to his present unit on 20 May 93. He has received
a total of seven performance reports with overall ratings, from oldest to most recent, as follows:
“3”, “4, “5”, “4”, “5”, “5” and “Sees entitled to wear: the Aerial Achievement
Medal, the Air Force Commendation Medal, the Air Force Achievement Medal, the Air Force
Outstanding Unit Award with one device, the Combat Readiness Medal, the Air Force Good
Conduct Medal with one oak leaf cluster, the National Defense Service Medal, the Armed Forces
Expeditionary Medal, the Southwest Asia Service Medal with one device, the Armed Forces
Service Medal, the Humanitarian Service Medal, the Air Force Overseas Ribbon, the Air Force
Longevity Service Ribbon with one device, the NCO Professional Military Education Graduate
Ribbon, and the Air Force Training Ribbon. The respondent did not submit any statements with
his unconditional waiver. There are no recoupment issues in this case. Pursuant to AFI 36-3208,
paragraph 6.3.1 a medical examination is not required in this case.

 
     

c. The respondent’s physical abuse of his two year old adopted son; resulting in
the child’s death, warrants discharge with a UOTHC service characterization. The City of
Vacaville police report, the Coroner’s report and the other ancillary documents in the cas -
indicate suffered multiple bruises, lacerations, internal injuries and head traumeé i
was foun pursuant to a plea and is currently in jail, serving a 7-year sentence. The physical
abuse inflicted uponsiddiiiewresulting in his death represents a significant departure from the
conduct expected of airmen. Thus, a UOTHC is appropriate in this case. Given the nature of the
puenses the respondent was convicted of and his adjudged sentence, P&R is not appropriate in
this case.

5. OPTIONS OF THE DISCHARGE AUTHORITY

You may:

a. Accept the respondent’s unconditional waiver of his rights associated with a discharge
board and order him separated from the Air Force for Misconduct - Civilian Conviction with an
honorable, general (under honorable conditions) or UOTHC service characterization with or
without P&R; or a
| - FD2202- Car?
i )

b. RejeclRRe unconditional waiver ant return the case for further administrative
discharge processing in accordance with AFI 36-3208.

”

6. RECOMMENDATION

That you accept the respondent’s unconditional waiver and order RR cp arated from the
Air Force for Misconduct - Civilian Conviction with a UOTHC service characterization without

P&R.

 

I concur.

 

Attachments:

1. Proposed Memo
2. Case File ie

cc:
60 AMW/JA
: FO2CO2Z-IA2Z/F
( ) (J

DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 60TH AIR MOBILITY WING (AMC)

 

23 WHR 188

MEMORANDUM FOR 60 AMW/CC

FROM: 60 AMWHJA
232 U Street
‘Travis AFB CA 94535-2815

SUBJECT: Unconditional Waiver of drninistialive Discharc

e Board Hearing

  
  
  

 

 

   

1. Introduction: | have reviewed the discharge action pertaining to SO@aNaMeme
(Respondent) and | find it legally sufficient to support the proposed action. on 20 eb
98, the commander of the 22” Airlift Squadron initiated discharge action one

GBD ursua0t to AFPD 36-32 and AFI 36-3208, paragraph 5.51: Misconduct, Civilian

“ Conviction, and recommended. an under other than honorable conditions (UOTHC)
discharge characterization without probation and rehabilitation (P&R). After a careful
review of Respondent's case file on 20 Mar 98, the 60 OG/CC concurred with
22 AS/CC to proceed with the discharge action and her recommendation for a VOTHC
discharge without P&R.

    

_ 2. Respondent’s Personal Data: This 26-year-old loadmaster with over 9 years of |
creditable military service enlisted in the Air Force under the Delayed Enlistment
Program on 15 Sep 88 and has a current 4-year enlistment beginning on 14 Oct 94. He
has received 7 EPRs, one of which shows overall ratings of “3,” two of which show
overall ratings of “4,” and the remaining four EPRs show overall ratings of “5.”
Respondent has received favorable awards, including the Air Force Achievement
Medal, Air Force Commendation Medal, Air Force Good Conduct Medal (1OLC), Aerial
Achievement Medal, Combat Readiness Medal, Air Force Longevity Service Award
(one device), National Defense Service Medal, Air Force Overseas Service Long Tour
Ribbon, NCO Professional Military Education Ribbon, Armed Forces Expeditionary
Medal, Southwest Asia Service Medal (one device), Armed Forces Service Medal,
Humanitarian Service Medal, Air Force Training Ribbon, and Air Force Outstanding Unit

‘ Award (one device). A detailed summary of his personal data is contained in
paragraph 2 of the Commander’s Recommendation for Discharge letter, dated 20 Mar
98.

 

3. Respondent’s Statement: Based on his possible UOTHC discharge, NCO status,
and creditable service of over 9 years, Respondent was personally served with a copy
- PDZCO2-O ALT

pop |

of his discharge case file which informed him of his right to consult counsel, to request

~a hearing before an administrative discharge board, to be represented by counsel
before a discharge board hearing, and to present written statements in addition to, or in
lieu of, the board proceedings (Tab 1). On 20 Mar 98, Respondent unconditionally
waived his right to consult counsel, to present his case’ before an administrative
discharge board and to submit matters for the separation authority’s consideration (Tab
3). The unconditional waiver subjects Respondent to possible receipt of a UOTHC
discharge.

 

4. Basis for Discharge: This action is legally sufficient to support the recommended
action under paragraph 5.51 of AFI 36-3208. Specifically, on or about 4 Nov 97,
Respondent was convicted of abusing and endangering the health of a child, infliction
of great bodily injury, in violation of Sections 273a(a) and 12022.7 of the State of
California Penal Code. Respondent pled “no contest” to the charges. The City of
Vacaville police reports and ancillary documentation indicate that Respondent, abused
his child, ate g in his death on or about 1 Jun 97 in Vacaville, California
(Atchs 2 through 15). For this offense, Respondent was sentenced to 7 years
confinement in the California state corrections department and received a $1,400 fine,
as evidenced by the Superior Court of California, Solano County, Abstract of Judgment,
dated 12 Jan 98 (Atch 1, Tab 1). Respondent is subject to discharge under paragraph
5.51 because his sentence by civilian authorities includes confinement for more than 6
months and because a punitive discharge is authorized for the same or a closely
related offense under the Manual for Courts-Martial (MCM). As stated in the MCM, a
similar offense under Article 128, UCMJ, includes as an authorized punishment a
dishonorable discharge, 5 years confinement, and forfeiture of all pay and allowances.

5. Appropriateness of Discharge: Discharge is appropriate in this case based upon
Respondent's civilian conviction and sentence to 7 years confinement. In fact, under

AFI 36-3208, paragraph 5.51.3.2, Respondent must be discharged unless the
commander determines Respondent should be retained and submits a request for
retention. Airmen who have a civilian conviction involving an offense for which a
punitive discharge and confinement for a year or more is authorized for the same or a
closely related offense under the MCM must be processed for discharge or the
commander must request a waiver of discharge. The commander has not submitted
such a request for waiver of discharge, but instead has initiated discharge of
Respondent. Respondent’s assault upon his child resulting in his death and the
ensuing civilian conviction support discharge. .

\

6. Characterization of Service: Discharges under paragraph 5.51 are characterized
as entry-level separation, honorable, general, or UOTHC (AFI 36-3208, Table 1.3).
Respondent's service cannot be characterized as entry-level separation since he has
over 9 years of total military service. A discharge should be honorable only if
Respondent's service has met Air Force standards of acceptable conduct and
performance of duty or has been so meritorious that any other characterization would
be clearly inappropriate. Respondent does not meet this standard. A general
a ED 2002-O207
{ 3

discharge characterization is appropriate when negative aspects of the airman’s
conduct or performance of duty outweigh positive aspects of the airman’s military
record; and a UOTHC is warranted when a member’s improper acts are a “significant
departure” from conduct expected of airmen. Assaulting a child so severely that he
dies is a significant departure from the conduct expected of airmen and warrants a
UOTHC discharge. ,

7. Probation and_ rehabilitation (P&R): Although P&R is permissible, it is

inappropriate in Respondent's case due to the extremely serious nature of the offense
committed. His criminal conduct and resulting civilian conviction tend to disrupt order,
discipline, or morale within the military and bring discredit to the Air Force in the. civilian
community. Ido not believe Respondent has the capacity to be rehabilitated for
completion of his enlistment.

8. Options: Pursuant to paragraph 5.56.2 and 5.56.2.1 of AF] 36-3208, the General
Court-Martial Convening Authority approves or disapproves conditional and
‘unconditional board hearing waivers for misconduct cases, and must personally act on
discharges resulting in UOTHC. As the Special Court-Martial Convening Authority, your
options are to:

a. Direct this action be withdrawn and retain the respondent.

b. Forward the case file to 15 AF/CC with a recommendation that the unconditional
waiver be accepted and Respondent be discharged with an honorable, general, or
UOTHC discharge with or without P&R.

9. Recommendation: Forward the case file to 15 AF/CC with a recommendation that _
the unconditional waiver be accepted and Respondent be discharged with a UOTHC
discharge without P&R.

Attachment:
' 1. Proposed Action
2. Case Fil ma

 
 

I concur.
7 | Pravez-02/7

DEPARTMENT OF THE AIR FORCE
22D AIRLIFT SQUADRON (AMC)

 

20 FEU 1999

   

FROM: 22 AS/CC
510 Airlift Drive
Travis AFB CA 94535-2631

SUBJECT: Notification Letter - Board Hearing

1. | am recommending your discharge from the United States Air Force for Misconduct,
Civilian Conviction, according to AFPD 36-32 and AFI 36-3206, paragraphs 5.51. Copies of the
documents to be forwarded to the separation authority to support this recommendation are

attached.

2. The basis on which I am initiating this action is that on or about 4 Nov 97, you were
convicted of abusing and endangering the health of a child, infliction of great bodily injury, in
violation of Sections 273a(a) ‘and 12022.7 of the State of California Penal Code. You pled “no

contest” to the charges. The enclosed police reports and ancillary documentation indicate that
you abused your child, CBA vesulting in‘his death on or about 1 Jun 97 in Vacaville,

California (Atchs 2 through 15). For this offense, you were sentenced to 7 years confinement in
the California state corrections department and received a-$1,400 fine, as evidenced by the
Superior Court of California, Solano County, Abstract of Judgment, dated 12 Jan 98 (Atch 1,

Tab 1)..

3. This discharge action could result in your separation with a characterization of under other
than honorable conditions (UOTHC) discharge. | am recommending that you receive a UOTHC
discharge. The commander exercising SPCM jurisdiction or a higher authority will make the.
final decision in this matter. If you are discharged, you will be ineligible for reenlistment in the

Air Force.
4. You have the right to:
_a. Consult legal counsel.

b. Present your case to an administrative discharge board “subject to your availability.”

 

c. Be represented by legal counsel at a board hearing.

d. Submit statements in your own behalf in addition to, or in lieu of, the board hearing.

e. Waive the above. rights. You must consult legal counsel before making a decision to
waive any of your rights.
(  FUZI22-O2Z1F

 

5. Military legal counsel . RRB Airlift Drive, Bldg 381, Suite D-100,
Travis Air Force Base, California, DSN: 837-4569; Commercial: (707) 424-4569 has been
obtained to assist you. Call her between the hours of 0730 — 1630, Monday through Friday.
Instead of the appointed counsel, you may have another, if the lawyer you request is in the
active military service and is reasonably available as determined according to AF1 51-201. In
addition to military counsel, you have the right to employ civilian counsel. The Air Force does
not pay expenses incident to the employment of civilian counsel. Civilian counsel, if employed,
must be readily available.

6. Confer with your counsel and reply, in writing, within 7 workdays, specifying the rights you
choose to exercise. The statement must be signed in the presence of your counsel who also

. will sign it. If you waive your right to a hearing before an administrative discharge board, you
may submit written statements in your own behalf. | will send the statements to the discharge -
authority with the case file to be considered with this recornmendation. If you fail to respond,
your failure will constitute a waiver of the right to the board hearing.

7. Any personal information you furnish in rebuttal is covered by the Privacy Act of 1974. A
copy of AFI 36-3208, can be made available for your use (upon request).

8. If you request a board and you fail to appear without good cause, your failure to appear
constitutes a waiver of your right to be present at the hearing.

9. The discharge board or. discharge authority will make the finding and recommendations
required under 10 U.S.C. 2005(g).

10. Execute the attached acknowledgment and return it to me immediately.

 

Attachments:

1. Superior Court of California, Abstract of Judgment, 12 Jan 98
Crime Report, Case No. 97-05186, pages 1 — 8, 1 Jun 97
Crime Report, Case No. 97-05186, pages 9 — 13, 1 Jun 97
Crime Report, Case No. 97-05186, pages 14 - 16, 1 Jun 97
Crime Report, Case No, 97-05186, pages 20 — 32, 1 Jun 97
Crime Report, Case No. 97-05186, pages 33 — 34, 1 Jun 97
Crime Report, Case No. 97-05186, pages 44 — 54, 1 Jun 97
Crime Report, Case No. 97-05186, pages 55 — 58, 1 Jun 97
Death Investigation, Disposition, Page 68, 11 Jun 97

10. Death Investigation, Disposition, Page 69, 11 Jun 97

11. Crime Report, Case No. 97-05186; pages 71 —78, 1 Jun 97
12. Crime Report, Case No. 97-05186, pages 87 —89, 1 Jun 97
13. Crime Report, Case No. 97-05186, pages 90 —93, 1 Jun 97

 

ONONAARYN
|) FD2ca2- e21F

14. Office of the Coroner, Solano County, pages 211 — 219, 2 Jun 97

15. Primerica Life Insurance Company, w/Transcribed Statement, pages 79 - 86

16. Other Derogatory Data: ,
Establishment of SSF, 18 Jul 97