NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) 

AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

1  AFSNISSAN 

TYPE GEN 

( X  

I 

PERSONAL APPEARANCE 

NAME O F  COUNSEL AND OR ORGANIZATION 

Mr. Ted Jackson 

MEMBER SITTING 

4 

.---------------------------- 
ISSUES  A94.11 
A93.15 
A94.05 
A91.03 

/  HEARINGDATE 

CASE NUMBER 

/ 

1 

1 

1 

I 

RECORDREVIEW 

ADDRESS AND OR ORGANLZATION  OF COUNSEL 

Florida Department of Veteran's Affairs 00 

VOTE OF THE BOARD 

HON 

GEN 

UOTHC 

1  OTHER 

1 

DENY 

LETTER OF NOTIFICATION 

ADDITIONAL EXHIBITS SUBMITTED AT TIME OF 
PERSONAL APPEARANCE 
I  TAPE RECORDlNG OF PERSONAL APPEARANCE 

1  Advise applicant of the decision of the Board and the right to submit an application to the AFBCMR. 

+fi!F-~i!m!DA!P4  $2 
-.- ---- 

TY T  S  CRETARIAL AUTHORIT 
..... ..  ........................ m x . / . r C . . ~  .............., 

-  ..  . - 

INDORSEhlENT 

FROM: 

SAFtMRBR 
550 C STREET WEST, SUITE 40 
RANDOLPH AFB, TX 78150-4742 

DATE:  4/21/2004 

SECRETARY O F  THE AIR FORCE PERSONNEL COUNCIL 
AIR FORCE DISCHARGE REVIEW BOARD 
1535 COMMAND DR. EE WING. 3RD FLOOR 
ANDREWS AFB, MD 20762-7002 

TO: 

I 

AFHQ FORM 0-2077, JAN 00 

I 
(EF-V2) 

Previous edition will be used 

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMBER 

FD-2002-0467 

GENERAL:  The applicant  appeals  for  upgrade  of  the  discharge  to honorable,  to  change  the  reason  and 
authority for the discharge, and to change the reenlistment code. 

The applicant personally  appeared  before  the  Discharge  Review Board  (DRB) at  Andrews AFB  MD, via 
VTC  from Fort Gillem  GA, on April  19, 2004.  He was  represented  by  Mr.  Ted  Jackson  from the Florida 
Department  of  Veterans  Affairs.  Ms.  RS, the  applicant's  mother,  appeared  as  a  witness.  The  applicant 
submitted one additional exhibit - Exhibit #6: Court Order of Expunction, dtd June 6, 2003. 

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

FINDINGS:  The applicant's  request  is granted  in part  and denied  in  part.  The change of the  reason  and 
authority for discharge is granted.  The upgrade of discharge and the change of reenlistment code are denied. 

The  Board  finds  that  neither  the  evidence  of  record  nor  that  provided  by  the  applicant  substantiates  an 
inequity or impropriety that would justify a change in the character of the discharge or the reenlistment code. 
However, based upon the record and evidence provided by applicant, the Board  finds the applicant's  reason 
and authority for discharge inequitable. 

ISSUE: 

The applicant was discharged for a pattern of misconduct  and for a civilian conviction.  During his term  of 
service,  the  applicant  was  given  four  letters  of  reprimand  (LOR),  a  record  of  individual  counseling,  and 
punishment  under  Article  15, Uniform  Code of  Military  Justice.  The misconduct  documented by  each of 
these  disciplinary  actions  served  as  the  basis  for  the  discharge  for  a  pattern  of  misconduct.  One  LOR 
memorialized the applicant's  civilian conviction for aiding and abetting his wife  in the theft  of merchandise 
from a local Wal-Mart store.  That civilian conviction served as a separate basis for discharge.  The applicant 
submitted  an expunction  order  nullifying  the  earlier conviction and  providing  status  quo ante  relief  to  the 
applicant.  In  effect,  it was  as if  the  conviction  had  not  happened.  In  his testimony  before  the  DRB,  the 
applicant was articulate, affable, and engaging and provided  a great deal of information for consideration by 
the DRB. 

Issue 1.  The applicant contends discharge was inequitable because it was too harsh.  The DRB disagrees. 
The records indicated that the applicant received an Article  15, four LORs, and an RIC, along with three 
memoranda for record documenting additional instances of misconduct.  Not withstanding the testimony of 
the applicant, the DRB determined that the misconduct alleged actually occurred.  With regard to the theft of 
the car part, the DRB was unable to credit the applicant's version of the events.  Like the superiors who 
disciplined the applicant for this misconduct, the DRB found his explanation (i.e., that he forgot to pay) 
simply implausible.  With regard to the failure to go to his physical therapy appointment, the DRB again was 
unable to credit the applicant's  version of events in the face of contradictory facts provided by an 
uninterested third party.  As for the trip to Mobile, AL, the DRB determined that the notification occurred as 
the applicant indicated.  Notification was not, however, the issue; rather, the concern was whether the 
applicant had permission to leave the local area.  The DRB found it difficult to believe the applicant did not 
think to check with someone in authority.  Indeed, he noted that it occurred to him to ask the individual who 
briefed him on the post-9-1 1 orders, but that he was concerned the briefer would be unsympathetic.  All of 
this misconduct provides a sufficient basis for a discharge for a pattern of misconduct.  The Board concluded 
the misconduct was a significant departure from conduct expected of all military members and that through 
the administrative actions addressing the misconduct, the applicant had ample opportunities to change his 

negative behavior.  The administrative actions and the resulting discharge were appropriate given the 
applicant's misconduct. 

Issue 2.  The applicant contends that the command acted arbitrarily and capriciously in the administration of 
the disciplinary actions and the discharge and that there was supervisory mismanagement in his case.  The 
DRB disagrees.  There are four specific matters the DRB addressed in this regard.  First, the DRB was 
concerned about the command's apparent attempt to levy correctional custody with an LOR.  Although the 
LOR was apparently withdrawn, it was disquieting that a commander (and legal office) would have 
attempted to commit so obvious a procedural error.  Second, the DRB was concerned the command, on more 
than one occasion, apparently took administrative action more than once for the same offense.  While such 
an action is not improper, it does suggest the command lacked a coherent approach to discipline.  Third, the 
applicant alleged the disciplinary action was the direct result of an e-mail complaint the applicant sent to the 
installation commander.  The DRB noted that it was not until after the e-mail was sent that the applicant 
began to receive disciplinary action for misconduct.  The DRB determined, however, that the applicant's 
misconduct did, in fact, take place.  Thus, the administrative actions were the natural consequence of the 
misconduct.  Finally, the DRB was concerned about the "wall-to-wall  counseling"  publication referenced by 
the applicant.  While it was unprofessional to circulate such a document in the unit, there was no evidence 
the publication contributed in any way to the applicant's  disciplinary action and subsequent discharge for the 
misconduct in which he actually engaged.  In short, none of the aforementioned matters (alone or in the 
aggregate) amounted to arbitrary or capricious command action or supervisory mismanagement. 

Issue 3.  The applicant alleged that he was the victim of race and color discrimination.  He claims to have 
been discriminated  against by the white supervisors (race discrimination) and by the dark-skinned black 
supervisors (color discrimination) in the unit.  Other than the testimony of the applicant, there was no other 
evidence presented on this issue.  Based on the evidence presented, the DRB found no indication the 
applicant was the victim of discrimination. 

Issue 4.  The applicant contends that since his civilian conviction was expunged and nullified, the reason and 
authority for the discharge based on the civilian conviction cannot stand.  The DRB agrees.  Discharging a 
military member for a civilian conviction requires, among other things, a valid conviction.  In this case, the 
conviction was nullified and the applicant treated by the civilian court system as though the criminal 
conviction never occurred.  Since there is, for all intents and purposes, no longer a civilian conviction, a 
discharge based on that conviction cannot stand.  It should be noted that whether the applicant actually 
engaged in the criminal conduct is a separate matter.  Even though the conviction was rescinded, the DRB is 
not prevented from considering facts  that led to the conviction.  However, it was not necessary for the DRB 
to make a determination regarding the applicant's  culpability for the Wal-Mart theft because the other 
misconduct was sufficient to justify discharge for a pattern of misconduct. 

CONCLUSIONS:  The Discharge Review Board concludes that the discharge for a civilian conviction is no 
longer valid  and must be removed.  The Discharge Review Board  concludes further that the discharge for a 
pattern  of  misconduct  was  consistent  with  the  procedural  and  substantive  requirements  of  the  discharge 
regulation,  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  Discharge  Review Board  concludes that:  1) there  exists  no  legal  or 
equitable basis  for an upgrade  of the  character  of the  discharge  or  a change to the  reenlistment  code;  and 
2) the applicant's  reason  for  discharge should be  changed, under  the provisions  of Title  10, USC  1553, to 
indicate that the sole basis for discharge was a pattern of misconduct. 

Attachment: 
Examiner's Brief 

MISSING MEDICAL RECORDS - (Former AMN)  (HGH AlC) 

mmmmma 
1.  MATTER UNDER REVIEW:  Appl rec'd a GEN Disch fr USAF 25 Apr 02 UP AFI 36- 
3208, para 5.50 and 5.51 (Pattern of Misconduct and Civilian Conviction). 
Appeals for Honorable Disch. 

ANDREWS AFB, MD 

DEPARTMENT OF THE AIR  FORCE 

AIR  FORCE DISCHARGE REVIEW BOARD 

2.  BACKGROUND: 

a. DOB: 19 Nov 80.  Enlmt Age: 19 8/12.  Disch Age: 21 5/12. Educ: HS DIPL. 

AFQT: N/A.  A-72,  E-71,  G-70,  M-62. PAFSC: 2F031 -  Fuels Apprentice. 
DAS: 19 Dec 00. 

b.  Prior Sv:  (1) AFRes 14 Aug 00 -  28 Aug 00 (15 Days) (Inactive). 

3.  SERVICE UNDER REVIEW: 

a.  Enld as AMN 29 Aug 00 for 6 years. Svd: 1 Yr 7 Mos 29 Das, all AMS. 

b.  Grade Status:  AMN -  21 NOV 01 (Article 15, 21 Nov 01) 

A1C -  13 Oct 00 

c.  Time Lost:  None. 

d.  Art 15's:  (1) 21 Nov 01, Keesler AFB, MS -  Article 86.  You, did, on 

or about 9 Aug 01, without authority, go from your 
appointed place of duty.  Article 92.  You, having 
knowledge of a lawful order issued by Brigadier General 
- - - - - - - - - -  ,  to remain on telephone stand-by and remain 
in the local area, and not to leave town, an order which 
it was your duty to obey, did, on or about 14 Sep 01, 
fail to obey the same by wrongfully traveling to Mobile, 
Alabama.  Article 107.  You, did, with intent to 
deceive, make to Senior Master Sergeant - - - - - - - - -  I  an 
official statement, to wit:  answering "yesu in response 
to Senior Master Sergeant - - - - - - - - -   question, "Did you 
pay for the  (auto) part  (you received from - - - - - - - - - -   I# 
which statement "yes" was false in that you did not pay 
for said auto part, and was then known by you to be so 
false.  Article 121.  You, did, on or about 21 Jul 01, 
steal an automobile part  (a sensor) of a value of about 
$66.02, the property of - - - - - - - - -  .  Reduction to AMN, 45 
days restriction, 45 days extra duty, and a reprimand. 
(No appeal) (No mitigation) 

e.  Additional: LOR, 08 MAR 02 -  Arrested and convicted of shoplifting. 

MEM0,07 MAR 02 - Traffic violation (speeding). 
RIC, 07 MAR 02 -  Late for duty. 
LOR, 15 NOV 01 - No-show for an appointment and making a 

false official statement. 

LOR, 01 OCT 01 -  Failure to obey an order or regulation. 
LOR, 01 AUG 01 -  Failure to follow safety procedures, 

report for duty on time, attend scheduled 
appointments, and maintain integrity. 
MEMO, 01 AUG 01 - Unauthorized departure from mandatory 

MEMO, 30 JUL  01 -  Failure to pay for auto parts and lying 

physical training. 

to supervisor. 

f.  CM:  None. 

g.  Record of SV: None. 

(Discharged from Keesler AFB) 

h.  Awards &  Decs:  AFTR, AFOUA. 

i.  Stmt of Sv:  TMS:  (1) Yr  (8) Mos  (12) Das 
TAMS: (1) Yr  ( 7 )   Mos  (29) Das 

4 .   BASIS ADVANCED FOR REVIEW:  Appln  (DD Fm 293) dtd 25 Oct 02. 

(Change Discharge to Honorable) 

ISSUES ATTACHED TO BRIEF 

ATCH 
1. Applicant's Issues. 
2. Letters of References. 
3. Disciplinary Documents with Timelines. 
4. Attorney's Letter. 
5. Mississippi Statute 97-1-3. 
6. Letter to Discharge Review Board. 

4 Feb 03/cr 

ISSUE SHEET 

dated 1AugOl.  Official Statement. 
id not believe that I had made a false statement.  When 
told him that if a mistake had been 

1. 
I, 
contacted by the parts manger (Mr. 
made that I would gladly fm it.  I went to Champion Chrysler on Pass Road Biloxi, 
MS.  Furthermore I was in Battle Dress Uniform and gave them my home address, 
phone number, and work phone number.  My thinking is that if I had the intent of 
stealing the auto part that I would not have given them the above mentioned 
information so that they may contact the commander or myself.  When I departed 
the dealership there were no alarms sounding alerting the establishment of a theft 
taking place.  I realize that I made a mistake and corrected it as I stated above. 

2.  Letter of Reprimand dated 10AugOl.  Absence without leave. 
First, I know that I shouldn't  have left without notifying a competent authority.  I 
understand that. I went to the emergency room and was placed on a seven(7) day 
profile due the chest pain that I was experiencing.  I have Three issues with this 
letter of reprimand. 
A.  The commander stated that he had found no evidence to support me leaving 
such as medical conditions.  I was placed on a seven(7) day profile on the day in 
question. (9AugOl) 
B.  The commander attempted to give me thirty(30)  days correctional custody with a 
Letter reprimand.  This in itself can not be done with a letter of reprimand.  This 
caused me to lose some respect in the commanders leadership ability.  If I had not 
sought out legal guidance from the Area Defense Council I would have done as 
ordered and attended correctional custody. 

C.  In my response this letter of reprimand I made reference to an email that I sent 

to the base commander Brig. e en- When my response was read by the 

commander I was strongly urged to rewrite my response.  I did not.  The letter of 
reprimand was withdrawn on 04Sept02.  I do not know if it was because of the 
regulations being violated or response that submitted.  All I can say is that things 
were never the same after that between the commander and myself. 

3.  Letter of Reprimand dated OlOctOl 
I realize and take full responsibility for my actions that led to this letter of 
reprimand.  On SSeptOl  I was contacted by the First Sergeant,- 
concerning my ,now wife,  being at my on base residence.  According to the housing 
manual rules I had not violated any rules pertaining to guests staying a t  my 
residence.  She had not been a t  my residence for more than thirty(30) consecutive 

days.  I informed the First Sergeant that due to my age (20) at the time I would not 
be able to get married in Mississippi.  I would have to go to Mobile, A1 o r  Louisiana. 
Being that we at Keesler were on a compressed work schedule we had every other 
Friday off.  I told the First Sergeant on 10SeptOl that I would be able to go on 
14SeptOl.  The First Sergeant said that as long as I brought him marriage certificate 
that would be soon enough for him.  I did that.  I realize that on 1lSeptOl this 
country was changed forever.  I did notify my chain of command through the Fuels 

-i 

enter.  When I called to inform them of where I was going Amn 
answered the phone.  SSgt. -as 
away from the Ph 

wife kept m 
and straight back.  SSgt 
after the Letter of Reprimand had passed.  Also attached are Amn-nd 
-ttstement. 
that management was notified. 

ile we went to Mobile to get married. I went there 
tatement did not reach me before the three (3) days 

Accompanyiog their statements also is the log sheet veribing 

t o r n e w p o k e  with the Wal-Mart representative and the 

4.  Letter of Reprimand dated OSMar02. Civilian Conviction 
First I would like to apologize for the shame and disgrace that this event brought 
onto the U.S.  Air Force.  I take full responsibility for wife's  actions that caused this. 
I would like to say that even though there was not any evidence found on me I was 
found guilty by association.  I know that my wife testified in court that this incident 
was all her doing. That fact is correct. There were some facts that were ignored by 
the commander.  Yes I know that I was arrested on OSNovOl for suspicion of 
shoplifting at the D'Iberville  Wal-mart super center.  On the day of my trial my 
a t
prosecutor before the proceedings.  The prosecutor wanted to dismiss my case due 
to insufficient evidence.  Due to the fact that my son was present when we were 
arrested the Wal-Mart representative would not drop the charges.  During my trial 
when the Wal-Mart representative was asked if he saw me conceal anything he 
simply said "NO".  ~ ~ @ 4 D P r s l l ( l l l S l b l h r a s  present at the trial to witness to these 
facts.  I was assessed a fine of four-hundred ninety-five dollars.  It was assumed by 
the First Sergeant that I was guilty being that I did not file and appeal.  The reason I 
did not file an appeal was based on the fact that I had already spent one thousand 
dollars on my legal counsel.  It would have cost more than that to file the appeal. 
Due to my rank at that time I did not have finances to satisfy that. 

5.  Wall to wall counseling and signs of a bad airman 

This "publication was found in the lounge of my unit for all to see on the table. 
Given the way that E-4's  and below were treated it seemed to convey the attitude 
that was felt from management.  I will admit some might find this quite comical. 
However to those that would be on the receiving of this sort of technique would not 
find it so amusing.  This was not being professional as I was taught in basic training 
and technical training. 

6.  Letters of recommendation 

After being notified of my discharge recommendation I received fwe(5) letters of 
recommendations from noncommissioned and Senior noncommissioned officers on 
my conduct, job performance , attitude, and appearance. All state that after my 
article 15 they noticed a significant  improvement. 

DEPARTMENT OF THE AIR FORCE 
AIR  EDUCATION AND TRAINING COMMAND 

MEMORANDUM FOR A M ' .  
n * 
FROM:  81 SUPSICC 

SUBJECT:  Notification Memorandum 

1.  I am recommending your discharge from the United States Air Force for a pattern of 
misconduct and civilian conviction. The authority for this action is AFPD 36-32 and AFI 36- 
3208, Chapter 5, Section H, paragraph 5.50 (pattern of misconduct) and paragrpah 5.51 (civilian 
conviction).  If my recommendation is approved, your discharge will be described as honorable 
or general.  I am recommending that your service be characterized as general. 

2.  My reasons for this action are: 

a.  On 8 Nov 01, you were arrested by the Hanison County Sheriffs Department for suspicion of 

shoplifting at the Super Wal-Mart Shopping Center on Sangani Blvd, D'Iberville,  MS. 
Subsequently, you were convicted of Shoplifting and you were assessed a fine.  On 8 Mar 02, I 
issued you a Letter of Reprimand, placed it into your Unfavorable Information File (UIF) and 
placed you on the Control Roster. (Atch 1, Appendix A wlatchs) 

b.  On 7 Mar 02, you were ticketed by Security Forces personnel for driving your privately 

owned vehicle 44 mph in a posted 35 mph zone, for which you were verbally counseled on 
8 Mar 02.  (Atch 1, Appendix B wlatchs) 

c.  On 21 Nov 01, I punished you under Article 15, UCMJ, for the following infkactions: 

i.  On or about 9 Aug 01, you failed to go to your appointed place of duty, to wit:  Building 

120 1, Blake Gym. (Atch 1, Appendix C wlatchs) 

ii.  On or about 14 Sep 01, you having a lawll order issued by Brigadier Genera 

-0 

remain on telephone stand-by and remain in the local area, and not to leave town, 

failed to obey the order by wrongfblly traveling to Mobile, Alabama.  (Atch 1, Appendix C wlatchs) 

iii.  On or about 27 Jul01, with intent to deceive, made an official statement to SMS@ 

to wit:  answering "yes"  in response to his question, "Did you pay for the auto part 
you received from Champion Chrysler?" which statement was false in that you did not pay for the 
auto part.  (Atch 1, Appendix C wlatchs) 

iv.  On or about 21 Jul01, you stole an automobile part (a sensor), of a value of about $66.02, 

the property of Champion Chrysler. (Atch 1, Appendix C wlatchs) 

d.  On 15 Nov 01, you received a Letter of Reprimand and UIF for the following infractions: 

i.  On 14 Nov 01, you departed the hels flight for a 1500 hours physi 
which was actually a scheduled 1400 hours appointment.  Because SMSgt 
contact you, he instructed ~Sgt- 
contact the physical therapy staff. 
informed you were a no-show for the 1400 hours appointment.  Upon investigation with the 
ph  sical therapy technicians, it was revealed you did show up at 1500 hours and requested SrA 

b hange your no-show to reflect as a cancelled appointment.  Finally, you failed to 

report back to your duty section or contact competent authority for further instruction. 
(Atch 1, Appendix D wtatchs) 

ii.  On 14 IVov 01, SMSgt 

contacted you at home at approximately 1630 hours and 
directed you to report for duty.  After advising you of your Article 3 1 rights, you stated you were 
seen at physical therapy for an appoi 
therapy under the indirect supervision o 
information contradictory to your o 
(Atch 1, Appendix D wlatchs) 

u did engage in physical 

e.  On 14 Sep 01, you violated the 81 TRW/CC7s CAT-Directive Number 020 to remain on 

telephone standby, not to leave the local area and to remain in the local area, by going to Mobile, 
Alabama and securing an Alabama Certificate of Mamage, for which you received a Letter of 
Reprimand, dated 1 Oct 01, and an UIF.  (Atch 1, Appendix E wlatchs) 

f.  On diversoccasions you failed to follow safety procedures, report for duty at the 

prescribed time, attend scheduled appointments, and maintain your integrity, for which you 
received a Letter of Reprimand, dated 1 Aug 01, and an UIF.  (Atch 1, Appendix F wlatchs) 

3.  Copies of the documents to be forwarded to the separation authority in support of this 
recommendation are attached.  The commander exercising SPCM jurisdiction or higher will 
decide whether you will be discharged or retained in the Air Force, and, if you are discharged, 
how your service will be characterized. If you are discharged, you will be ineligible for 
reenlistment in the Air Force.  Any special pay, bonuses, or education assistance fimds may be 
subject to recoupment. 

4.  You have the right to consult legal counsel. Milit 

you.  I have made an appointment for you to consult T(l 

legal c  unsel has been obtained to assist 
&k/dat  E3ldg 0'701, Room 

133, on 
expense. 

0 a 

at  0tf30 

hours.  You may consult civilian counsel at your own 

5.  You have the right to submit statements on your own behalf.  Any statements you want the 
separation authority to consider must reach me by  3 
b 2 .by 1630 hours unless you 
request and receive an extension for good cause shown.  I will send them to the separation authority. 

6.  If you fail to consult counsel or to submit statements in your own behalf, your failure will 
constitute a waiver of your right to do so. 

7.  You have been scheduled for a medical examination. You must report to 81" Medical Group, 
Physical Exams on 

,2002 at /6/<  hours for the examination. 

1 .&f 

8.  Any personal information you fiunish in rebuttal is covered by the Privacy Act of 1974. A copy 
of AFI 36-3208 is available for your use in Bldg  %mx , CQ. 
3 Execute the attached acknowledgment and return it to me immediately. 

Commander 

Attachments: 
1.  Supporting Documents 

a.  Letter of Reprimand, dated 8 Mar 02 wlatchs 
b.  DD Form 1408, dated 7 Mar 02 wlatchs 
c.  AF Form 3070, dated 21 Nov 01 wlatchs 
d.  Letter of Reprimand, dated 15 Nov 01 wlatchs 
e.  Letter of Reprimand, dated 1 Oct 01 wlatchs 
f.  Letter of Reprimand, dated 1 Aug 01 wlatchs 
2.  Airman's Receipt of Notification Memorandum 
3.  Airman's Statement 
4.  Medical Examination 

ATCH  1