AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD
NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) GRADE AFSN/SSAN
ion SsGT
TYPE
PERSONAL APPEARANCE X RECORD REVIEW
COUNSEL NAME OF COUNSEL AND OR ORGANIZATION ADDRESS AND OR ORGANIZATION OF COUNSEL
YES [Ro
X
VOTE OF THE BOARD
MEMBERS SITTING HON GEN UOTHC OTHER DENY
= X
xX
X
+~
X
xX
—|
ISSUES INDEX NUMBER EXHIBITS SUBMITTED TO THE BOARD
A94.01 A67.30 1 | ORDER APPOINTING THE BOARD
2 | APPLICATION FOR REVIEW OF DISCHARGE
3 | LETTER OF NOTIFICATION
HEARING DATE CASE NUMBER 4 | BRIEF OF PERSONNEL FILE
4 NOV 02 FD2002-0192 COUNSEL’S 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 FD02-0192

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.

ISSUE: Applicant contends discharge was improper and quotes two law cases: Wood vs Secretary of
Defense and Doe vs Secretary of the Air Force and states that it should have been honorable. The Board
reviewed the entire record and found no evidence of impropriety or inequity in this case on which to base an
upgrade of discharge. The records indicated the applicant tested positive for BZE, the metabolite of
cocaine, at 34,805 ng/ml, well above the DoD cutoff of 100 ng/ml. He received an Under Other Than
Honorable Conditions discharge for Misconduct, Commission of a Serious Offense, Drug Abuse. In Wood
vs Secretary of Defense, less than honorable discharges had been issued to four Army inactive reservists for
civilian misconduct. They sought a judgment requiring DoD officials to review and upgrade their
discharges unless the civilian misconduct relied upon were found to have affected their military service.
These four members were in the inactive reserve. The applicant was an active reservist and an aircraft
Loadmaster and was subjected to a random urinalysis when he reported for duty on 12 July 1998. The
amount of BZE found in his urinalysis was found, by a preponderance of the evidence, to have adversely
affected his military duties on that day. In Doe vs Secretary of the Air Force, this issue is found to be
without merit as that case involved an active duty Major accused of committing homosexual acts with a
fifteen-year-old boy. The Board concluded the misconduct was a significant departure from conduct
expected of all military members and concluded that the characterization of the applicant’s discharge was

appropriate due to the 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
FD2002-0192
DEPARTMENT OF THE AIR FORCE
ATR FORCE DISCHARGE REVIEW BOARD
ANDREWS AFB, MD

(FORMER SSGT) (HGH TSGT) MISSING DOCUMENTS

 

1, MATTER UNDER REVIEW: Appl rec’d a GEN Disch fr USAF 99/05/14 UP AFI 36-3209,
para 3.21.3.2 (Misconduct - Commission of a Serious Offense, Drug Abuse).
Appeals for Honorable Disch.

2. BACKGROUND:

a. DOB: 64/06/09. Enimt Age: 20 5/12. Disch Age: 34 11/12. Educ: HS DIPL
AFOT: N/A. A-75, E+66, G-61, M-47. PAFSC: X1A251 - Aircraft Loadmaster
Journeyman. DAS: 84/11/13.

b. Prior Sv: Enld in AFRes as AB 84/11/13 for 6 yrs. Svd: 6 Mos 12 Days,
AMS. Reenld 87/09/01 for 6 yrs. Svd: 1 Yr 0 Mo 26 Days, AMS. AMN - (Unknown),
Alc - 86/03/21. SRA - Unknown. SSGT - 88/03/11. TSGT - Unknown.
EXAMINER'S NOTE: It appears the applicant was promoted to TSGT based on award of
an Air Force Commendation Medal in the grade of TSGT (Special Order G0O21, 17 May
91). His record also indicates he later retrained into a new career field (Air

Operations to Loadmaster), which resulted in his assignment to a loadmaster SSGT
position, and the loss of his grade from TSGT to SSGT.

3. SERVICE UNDER REVIEW:

a. Reenld as SSGT 93/05/22 for 6 yrs. Ext: 97/05/01 for 2 Mos. Svd: 1 Yr
5 Mos 9 Das, AMS.

b. Grade Status: None
c. Time Lost: None
d. Art 15’s: None.
e. Additional: None.
f. CM: None
g. Record of SV: None
(Discharged from McGuire AFB)

h. Awards & Decs: AFCM, ARFMSM (40LC), AFLSAR (20LC), AFTR, AFOUA (20LC),
AFRM, NDSM.

i. Stmt of Sv: TMS: (13) Yrs (0) Mos (14) Das
TAMS: (3) Yrs (0) Mos (17) Das
FD2002-0192

4. BASIS ADVANCED FOR REVIEW: Appln (DD Fm 293) dtd 02/04/25.
(Change Discharge to Honorable)

Issue: Discharge characterization is improper. It should be honorable in
accordance with AFI 36-3209, para A2.2 et seq; AFR 20-10, para 19e, DODD 1332.28
atch 4, Wood v. Secretary of Defense, 196 F.Supp 192 (D.C. Dist
1980) (see especially p. 197 dicta) and Doe v. Secretary of the Air Force, 563
F. Supp. 4 (D.C. Dist 1982).

 

 

ATCH
None.

02/08/13/er
[D).2202- CATER ED

DEPARTMENT OF THE AIR FORCE
AIR FORCE RESERVE COMMAND

  

RESERVE

1948-1998

   

13 April 1999

MEMORANDUM FOR CV

FROM: JA

    

SUBJECT: Legal Review of Administrative Discharge Board

1. 1 have reviewed the administrative discharge board proceedings against SSgt
- Seeend find the proceedings legally sufficient.

2. The commander of the 732 AS recommended thai pamiensnendlle bc

separated with an Under Other Than Honorable Conditions discharge for Misconduct,
Commission of a Serious Offense, Drug Abuse, IAW AFI 36-3209, paragraph 3.21.3.2.

More specifically gE as being recommended for a. for using

cocaine. In a random urinalysis conducted 12 July 1998% tested: positive
for BZE, the metabolite of cocaine, at 34,805 ng/mL, well above the DoD cutoff of 100
ng/mL. On 28 October 1998, the Chief, Persqgpel Division, HQ ee sent a Letter of
Notification of Separation Action (LON) tegaiia % ae

receipt and requested an administrative discharge board on? Ne ovember 1998, The
board was held 13 January gc not present, but was represented by

legal counsel.

 
 

    

3. The board found, by a preponderance of the evidence, that the respondent did

wrongfully use cocaine, as evidenced by the cocaine metabolite in his urine sample.

Consistent with the findings, the board recommended RAD separated from
the USAFR and issued a General (Under Honorable Conditic 1s) discharge.

Presumably, this was based upon testimony fro i, ¥ commander and first
sergeant, who believe that when considerindiiyaaEEEe™ entire enlistment, the best-
fitting characterization was a General discharge. Furthermore, “— both testified to the

lack of impac nana actions had on their unit. ad a spotléss,
positive record prior to this positive random urinalysis.

 
 
 

4, The discharge file reflects Qa a s completed about 13 years of satisfactory
service toward a Reserve retirement. His decorations include the Air Force
Commendation Medal, the Air Force Outstanding Unit Award (2 OLC), the Reserve
Forces Meritorious Service Medal (4 OLC), the National Defenge Service Medal, the Air
FD 200 2- 0/927.

Force Longevity Service Award Ribbon (2 OLC), the Armed Forces Reserve Medal, and
the Air Force Training Ribbon.

9. A factual basis for separation must be established before the questions of
appropriateness of sepa ration and characterization are determined. The case file

Meeeestablishes a sufficient factual basis for discharge. Once the
factual basis for discharge i is determined, the member's entire military record should be
reviewed to determine whether separation or retention is appropriate. The current
enlistment is examined to determine the proper characterization of the discharge.
Guidance on characterization includes:

 
  

a. Honorable: The Honorable characterization is appropriate when the quality of
the member's service has generally met Air Force standards of acceptable conduct and
duty performance. It may also be appropriate when a member's service is so
meritorious, that any other characterization would be inappropriate.

b. General (Under Honorable Conditions): If a member's service has been honest
and faithful, but significant negative aspects of the member's conduct or performance of
duty outweigh positive aspects of the member’s military record, it is appropriate to
characterize that service as General (Under Honorable Conditions). However, conduct
in the civilian community of a USAFR member not on active duty or active duty for
training;may be used to characterize service as General (Under Honorable Conditions)
only if the conduct has an adverse impact on the overall effectiveness of the Air Force,
including military morale and efficiency.

c. Under Other Than Honorable Conditions: Characterization of service as Under
Other Than Honorable Conditions may be appropriate when the reason for separation
is based on one or more acts or omissions that constitute a significant departure from
the conduct expected. Conduct in the civilian community of a USAFR member not on
active duty or active duty for training may be used to characterize service as Under
Other Than Honorable only if the conduct directly affects the performance of military
duties.

6. The member is neither eligible for retirement nor lengthy service probation.
7. The member is not eligible for probation and rehabilitation.

8. OPTIONS: The options available to you are:

a. Approve the board findings and recommendations, and recommend the
respondent be discharged with a General (Under Honorable Conditions) discharge; or
FD 200 2-3 FZ

b. Approve the board findings, and recommend the respondent be discharged with
an Honorable discharge; or

c. Disapprove the discharge case and retain the respondent.

  
 

9, RECOMMENDATION: I reco me id prove the boards findings and
recommendations and discharge Sigaeweee weaemeee with a General (Under

Honorable Conditions) discharge.
FD Z002-O/ FZ V6TIAN RED

DEPARTMENT OF THE AIR FORCE
AIR FORCE RESERVE COMMAND

    

aL

1948-1998

 

MEMORANDUM FOR CV 04 JAN

FROM: AFRC/JA

 

1, The evidence against the respondent is legally sufficient to support the administrative discharge
pursuant to AFI 36-3209, Chapter 3, paragraph 3.21.3.2, Misconduct, Commission of a Serious
Offense, Drug Abuse. The file establishes, by a preponderance of evidence, that on or about 12 Jul 98,

MNEs selected for random urinalysis testing. The test resulted in a positive for cocaine, in
a quantity at or above the DoD cutoff level. There was nothing in the case file, nor was any evidence

Ree vas taking any prescribed substances or participating in any medical

trials which could result i ina a positive for cocaine. An Under Other Than Honorable Conditions
discharge was recommended.

 

2. After receiving notification of the discharge action, the respondent has elected to waive his right to
a discharge board hearing. This waiver is conditioned on his receiving no less than a General (Under
Honorable Conditions) discharge. The government does not support this outcome.

3. Membership in the United States Air Force Reserve is not an individual’s inherent right, but a
privilege. A member not qualified or not able to properly fulfill his or her obligation to serve may be
separated or discharged from the USAFR. Pursuant to AFI 36-3209, a commander will evaluate any
information received that indicates a member should be discharged and determine whether discharge
proceedings should be initiated. As a rule, the acts or conditions on which a recommendation for
discharge is based will have occurred or existed in the current enlistment. AFI 36-3209, paragraphs
3.21 and 3.21.3 provide that a member may be discharged for misconduct, including the commission of
a serious offense, if the specific circumstances of the offense warrant separation or discharge and a
punitive discharge would be authorized for the same or a closely related offense under the UCMJ.
Offenses deemed serious enough to merit consideration under this section include drug abuse,
paragraph 3.21.3.2, The member’s conduct falls squarely within these provisions. Consequently,
discharge from the USAFR is appropriate.

4, Once it has been determined that discharge is appropriate, the member’s entire military record may
be considered to determine whether the member should be in fact discharged. In this instance, —
notwithstanding his participation in Desert Storm, a review ena records indicate that
discharge remains the appropriate course of action. When it has been detérmined that discharge is
appropriate, consideration must next be given to what characterization is appropriate. When
determining the propriety of a given characterization of service, only the member’s current enlistment
is evaluated, The commander recommended an Under Other Than Honorable Conditions discharge.

The following is provided as a guide in determining the appropriate characterization of service in this
case:
Fp 2202-67 FZ

a. Honorable: The Honorable characterization is appropriate when the quality of the member’s
service has generally met Air Force standards of acceptable conduct and duty performance. It may also
be appropriate when a member’s service is so meritorious, that any other characterization would be
Imappropriate.

b. General (Under Honorable Conditions): If a member’s service has been honest and faithful,
but significant negative aspects of the member’s conduct or performance of duty outweigh positive
aspects of the member’s military record, it is appropriate to characterize that service as General (Under
Honorable Conditions).

c. Under Other Than Honorable Conditions: Characterization of service as Under Other Than
Honorable Conditions may be appropriate when the reason for separation is based on one or more acts
or omissions that constitute a significant departure from the conduct expected. Conduct in the civilian
community of a USAFR member not on active duty or active duty for training may be used to
characterize service as Under Other Than Honorable Conditions only if the conduct directly affects the
performance of military duties. |

ecords indicates he has 13 years of satisfactory service. Cocaine use is
a gross and significant departure from the conduct expected of all members of the Air Force Reserve,
especially non-commissioned officers. In light of the nature of this offense I strongly recommend a
discharge characterization of Under Other Than Honorable Conditions.

 

6. The member is neither retirement eligible nor is he eligible for lengthy service probation.
7. OPTIONS:
a. Reject the waiver and direct further processing of the case;

b. Accept the conditional waiver and discharge the respondent with an Honorable or General
(Under Honorable Conditions) discharge;

c. Disapprove the discharge case and retain the respondent.

8. RECOMMENDATION: Based upon the facts in this case, I recommend that you reject the waiver
and direct further processing of the case.
FR 2002-0/7Z2

AIR FORCE

  
 
  

DEPARTMENT OF THE AIR FORCE
AIR FORCE RESERVE COMMAND

4

ane

1948-1998

(ee OCT 88

 

   

MEMORANDUM FOR SSG’

\

FROM: HQ AFRC/DPM
155 2nd St
Robins AFB GA 31098-1635

SUBJECT: Notification of Initiation of Separation Action under AFI 36-3209

1. By this memorandum, separation action is being initiated against you for misconduct,
commission of a serious offense, drug abuse. The authority for this separation action is AFI 36- .
3209, Chapter 3, paragraph 3.21.3.2. Information regarding your entitlement to submit
statements about your case, the lawful usage of such statements and their disclosure is provided in
the attached Privacy Act Statement (Atch 1). A description .of the reasons for this separation
action is set forth in the attached Statement of Reasons (Atch 2) along with supporting
documents. AFI 36-3209 is available for your review at your servicing Military Personnel Flight. -
The types of separation authorized are Honorable, General (Under Honorable Conditions) and
Under Other Than Honorable Conditions. The type of separation recommended in your case is an
Under Other Than Honorable Conditions Discharge.

2. Within 24 hours after you receive this memorandum, you must complete and return the
attached acknowledgment of receipt (Atch 3) of this memorandum and the attachments thereto.

t

3. The following is a summary of your rights:

a. You are entitled to consult with a military legal counsel who is qualified under Article
27(B)\(1), Uniform Code of Military Justice (UCMJ), at no cost ta you. You may also consult
with civilian legal counsel of your choice, but at your own expense. 4 mw a Judge
Advocate who is qualified under Article 27(B)(1), UCMJ, has been designated to represent you in
connection with this separation action. Her mailing address is HQ AFRC/JAS, 155 2nd St,
Robins AFB GA 31098-1635. Her phone numbers are DSN 497-1588, 1-800-458-5391, or (912)
327-1588.

 

b. You have the right to submit pertinent statements and/or documents in your behalf which
you desire to be considered in the disposition of your case. If you elect to exercise your right to
submit statements, and you return the attached form (Atch 4)‘within 15 days of receipt, you may
submit statements or documents at any time during the administrative discharge process. Your
decision on requesting or waiving the board hearing does not affect your right to submit
statements or documents during the administrative discharge process. The form must be signed

_ either by you or your legal counsel and returned to HQ AFRC/DPM, 155 2nd St, Robins
AFB GA 31098-1635.
ED ACL -D/F2

c. If you-need additional time to respond to this separation action, either you or your legal
counsel may submit a written request to HQ AFRC/DPM, 155 2nd St, Robins AFB GA 31098-
1635, fof an extension of time, stating why you need-the extra time and how much you'll need.
The request must be submitted in sufficient time to reach this office within 15 days after receipt of
this memorandum.

4. You are eligible for an administrative discharge board. Within 15 days after you receive this
memorandum, you may request to have your case heard by an administrative discharge board at
this headquarters by completing and returning the attached form (Atch 5) requesting a board
hearing. If you desire a board hearing, you must mail the completed form in sufficient time to *
reach this headquarters within 15 days after your receipt of this memorandum. Otherwise, your.
right to have your case heard by an administrative discharge board will be considered waived:
Within 15 days after you receive this memorandum, you may waive your right to have your case °
heard by an administrative discharge board by completing and returning the attached form (Atch
6), evidencing your waiver. Information regarding an administrative discharge board is
provided at Attachment 7.

5. You are not eligible to apply for transfer to the Retired Reserve.

6. You should note that failure to respond on the selection of one of these options, or failure to
request a delay within 15 days after you receive this memorandum, will constitute waiver of all
your rights. This includes the right to have your case heard by an administrative discharge board,
and will result in your case being processed on the basis of all the evidence then available.

7. Return envelopes are attached (Atch 8) for your convenience.

 

Attachments:

1, Privacy Act Statement

2. Statement of Reasons w/
Supporting Documentation
Acknowledgment of Receipt
Selection of Rights

Request for Board Hearing
Waiver of Board Hearing
Discharge Board Info
Envelopes (2)

AIA wW DY

cc:
HQ AFRC/JAS
514 MSS/DPMSA wo Attachments

x