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i 

AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

.

 

/  NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) 

I 
1 

GRADE 

AFSNISSAN 

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3 
4 

LETTER OF NOTIFlCATlON 
BRlEF OF PERSONNEL FILE 
COUNSEL'S RELEASE TO THE BOARD 
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF 
PERSONAL APPEARANCE 

TAPE RECORDING OF PERSONAL APPEARANCE 

MEMBER SITTING 

I  I 
I  HEAIUNCDATE 

INDEX NUMBER 

I  CASENUMBER 

I Case heard at Washington, D.C. 

Advise applicant of the decision of the Board, the right to a personal appearance withlwithout counsel, and the right to 
submit an application to the AFBCMR. 

(/ 

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

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL 
AIR FORCE DISCHARGE REVIEW  BOARD 
1535 COMMAND D R  EE WING, 3RD FLOOR 
ANDREWS AFB. MD 20162-1002 

AFHQ FORM 0-2077, JAN 00 

(EF-V2) 

Previous edition will be used 

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMBER 

FD-2004-00072 

GENERAL:  The applicant appeals for upgrade of discharge to honorable and to  change his reenlistment 
code. 

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

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

FINDINGS:  Upgrade of discharge and 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 justifj a change of discharge. 

ISSUES: 

Issue 1.  Applicant contends discharge was inequitable because it was too harsh.  The records indicated the 
applicant received two Articles  15 for misconduct, consisting of having a sexual relationship with the wife of 
another airman, violating a no contact order with the other airman, and driving while intoxicated.  Applicant 
now contends that he did not have a sexual relationship with the female in question, nor did he drive drunk 
due to his motorcycle being inoperable; he claimed he was pushing it back to base.  Nevertheless, the record 
clearly shows that member admitted his unlawful relationship with the other airman's wife in paragraphs 4 
and 5 of his (member's)  very lengthy reply to the Article 15.  As regards the drinking and driving incident, 
the Nevada Highway Patrol trooper's  report clearly states that he observed member "slow down in front of 
my patrol vehicle then pull off the roadway . . . . ."  Additionally, member spent 2 days in civil confinement 
incident to this arrest.  The DRB opined that through the unit's  administrative actions, the applicant had 
ample opportunities to change his negative behavior and was unwilling or unable to do so.  The Board 
concluded the misconduct was a significant departure from conduct expected of all military members.  The 
characterization of the discharge received by the applicant was found to be appropriate. 

Issue 2.  Applicant states that his discharge did not take into account the good things he did while in the 
service. The DRB took note of the applicant's duty performance as documented by his performance reports, 
letters of recommendation and other accomplishments.  They found the seriousness of the willful misconduct 
offset any positive aspects of the applicant's duty performance.  The Board concluded the discharge was 
appropriate for the reasons which were the basis for this discharge. 

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 

DEPARTMENT OF THE AIR  FORCE 

AIR  FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB,  MD 

(Former AB)  (HGH SRA) 

1.  MATTER UNDER REVIEW:  Appl rec'd  a GEN Disch fr Nellis AFB, NV on 20 Aug 99 
UP AFI 36-3208, para 5.50.2 (Pattern of Misconduct -  Conduct Prejudicial to Good 
Order and Discipline).  Appeals for Honorable Discharge and to Change the RE 
Code. 

2.  BACKGROUND: 

a. DOB: 21 Apr 78.  Enlmt Age: 18 4/12.  Disch Age: 21 3/12. Educ: HS DIPL. 

AFQT: N/A.  A-79,  E-81,  G-96,  M-74. PAFSC:'3E831 -  Explosive Ordinance 
Disposal Apprentice. DAS: 29 Jul 97. 

b.  Prior Sv: (1) AFRes 18 May 96 -  3 Sep 96  (3 months 16 days)(Inactive). 

3.  SERVICE UNDER REVIEW: 

a. '  Enlisted as AB 4 Sep 96 for 6 yrs. Svd: 2 Yrs 11 Mo 17 Das, of which 

AMS  is 2 Yrs 11 Months 15 Days  (excludes 2 days lost time) . 

b.  Grade Status:  AB  -  15 Jun 99 (Article 15, 15 Jun 99) 

AMN -  25 Mar 99 (Article 15, 25 Mar 99) 
SRA -  19 Feb 99 
A1C  -  (EPR Indicates) :  4 Sep 96-3 May 98 

c.  Time Lost:  4 May 99 thru 5 May 99 ( 2   days). 

d.  Art 15's:  (1) 15 Jun 99, Nellis AFB, NV -  Article 111.  You, did, on 

or about 3 May 99, at or near the intersection of 
Interstate 15 and Craig Road, Las Vegas, Nevada, 
physically control a vehicle, to wit: a motorcycle, 
while drunk, as evidenced by the alcohol concentration 
in your blood being 10 grams of alcohol per 100 
milliliters of blood or greater, as shown by chemical 
analysis.  Reduction to AB, and 14 days extra duty. 
(Appeal/Denied) (No mitigation) 

(2) 25 Mar 99, Nellis AFB, NV -  Article 92.  Yo 
knowledge of a lawful order issued by CMSgt 

to wit: 
ereby ordered to have no 
contact with SrA 
other than professional 
contact during normal duty hours or words to that 
effect, dated 16 Feb 99, an order which it was your duty 
to obey, did, at or near Las Vegas, Nevada, on or about 
1 Mar 99, fail to obey the same by wrongfully going to 
off duty residence.  Article 134.  You, 
S~A- 
did, between on or about 1 Aug 98 to on or about 14 Feb 

99, wrongfully have sexual intercourse with 

a married woman not your wife.  Reduction to  . 

Airman, 30 days restriction, and 30 days extra duty. 
(Appeal/Denied) (No mitigation) 

e.  Additional: None. 

f.  CM:  None. 

g.  Record of SV: 4 Sep 96 -  03 May 98  Nellis AFB  5  (Initial) 

4 May 98 -  31 Jan 99  Nellis AFB  5  (CRO) 

I 

h.  Awards &  Decs:  AAM,  AFTR. 

i.  Stmt of Sv:  TMS: (3) Yrs  (3) MOS  (0) Das 

TAMS:  (2) Yrs  (11) Mos  (15) Das 

4.  BASIS ADVANCED FOR REVIEW:  Appln  (DD Fm 293) dtd 19 May 04. 

(Change Discharge to Honorable and Change the RE Code.) 

I 

ISSUES ATTACHED TO BRIEF. 

ATCH 
1. Applicant's Issues with Tabs 1-14. 

DEPARTMENT OF THE AIR  FORCE 

99TH CIVIL ENGINEER SQUADRON (ACC) 

NELLIS AIR FORCE BASE,  NEVADA 

-I 

MEMORANDUM FOK AB B

FROM:  CCQ 

4 

9

CCES 

Z t J t K   me 

SUBJECT: Notification Memorandum - Administrative Discharge AFI 36-3208 

1.  I am recommending your discharge from the United States Air Force for a pattern of 
misconduct, specifically conduct prejudicial to good order and discipline.  The authority for this 
action is AFPD 36-32 and AFI 36-3208, paragraph 5.50.2.  If my recommendation is approved, 
' your service may be characterized as honorable, general, or under other than honorable 
conditions (UOTHC).  I am recommending that your service be characterized as general. 

2.  My reasons for this action are: 

a.  On or about 3 May 99, you did at or near Las Vegas, NV, at or near the intersection of 

Interstate 15 and Craig Road, Las Vegas, NV, physically control a vehicle, to wit:  a n~otorcycle, 
while drunk, as evidenced by the alcohol concentration in your blood being .10 grams of alcohol 
per  100 milliliters of blood or greater as shown by chemical analysis.  For your actions, you were 
punished under Article 15, UCMJ, on 15 Jun 99 and received one day lost time due to being in 
civilian confinement (See attached AF Fms 2098, Duty Status Change); 

contact with S 

b.  On or about 1 Mar 99, you failed to obey a lawfkl order dated 16 Feb 99, not to have any 
during normal duty hours or words to 
base residence in violation of that 
order.  For your actions, you were punished under Article 3 5, UCMJ, on 25 Mar 99 and an 
unfavorable information file OJIF) was initiated; and 

i 

c.  Between on or about 1 Aug 98 and on or about 14 Feb 99, you did wronghlly have 

sexual intercourse with 
were punished under Article 15, UCMJ, on 25 Mar 99 and a UIF was initiated. 

a married woman not your wife.  For your actions, you 

3.  Copies of the documents to be forwarded to the separation authority in support of this 
recommendation are attached.  The commander exercising special court-martial jurisdiction or a 
higher authority 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. 

.@ 

?@a' Fag&+- 

zz 

ave the right to consult legal counsel.  Military legal.counse1 has been obtained to assist 

an appointment for you to consult the Area Defense Counsel at Bldg 625 on 

Tat  @q-70 hours.  You may consult civilian counsel at your own expense. 

' 

5.  You have the right to submit statements in your own behalf.  You have three (3) duty days 
(72-hours from the dateftime sewed) to submit statements in your behalf.  Any statements 
you want the separation authority to consider must reach me by  z 7  .11//7 
hours unless you request and receive an extension for good cause shown.  I will send them to the 
separation authority. 

at  /730 

6.  In the event the commander exercising Special Court-Martial jurisdiction or a higher authority 
approves your discharge, separations will out-process you.  Your initial separations briefing is 
scheduled for  ZL 3 ~ ~ 9  

on  / W //5  (&I 7~  ESL-T) 

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

8.  You have been scheduled for a medical examination at the 99th Medical Group on 19 Jul99 
at m. 

9.  Any personal information you furnish in rebuttal is covered by the Privacy Act of 1974.  A 
copy of AFI 36-3208 is available for your use in your Unit Orderly Room. 

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

Attachments: 
1.  Article 15, UCWIJ,  15 Jun 99 wlatchs 
2.  AF 2098, Duty Status Change, 5 May 99 
3.  AF 2098, Duty Status Change, 4 May 99 
4.  Article 15, UCMJ, 25 Mar 99 w/atchs 
5.  UIF, Mar Article 15 incident 

'A 

CONTINUATION OF DD 293 

-y 

and through his undersigned counsel, requests that this 

I lonorable Board upgrade the characterization of discharge form General (Under 

Honorable Conditions) to an Honorable characterization of discharge.  The factual, legal 

and equitable bases for this request are set forth herein. 

Facts Relevant to Application 

y

n

l

i

s

t

e

d

in the United States Air Force on September 4, 1996. 

 

After Basic Training, then-~irma-was 

assigned to training as an Explosive 

Ordnance Disposal Technician, 3E83 1.  Airma- 

was the "Distinguished 

tfonor Graduate" for his EOD school class and he achieved a 93 percent grade average. 

In short order, A i r m a n a ( l l l l l ) w a s   promoted to Airman First Class.  His 

performance evaluations as an Airman First Class rate him as an "outstanding performer 

in every aspect of duty."  See EPR for Period 4 Sep 96 through 3 May 98 (attached hereto 

at Tab 1 ). 

A1 C-later 

demonstrated his coolness in pressure situations as a first 

responder to the crash site of two MH-60 Blackhawk helicopters which had collided mid- 

air at the Nellis ranges.  Al-.assisted 

with firefighting, removal of the 

remains of the dead crews and cleared all explosive hazards from the crash area.  His 

performance in this regard was noted on his EPR for the period 4 May 98 to 3 1 Jan 99. 

See EPR for Period 4 May 98 through 3 may 98 (attached hereto at Tab 2).  Further, A 1 C 

efforts in the gruesome recovery of the accident victims'  remains was 

rewarded with the award of the Air Force Achievement Medal (attached hereto at Tab 3). 

Throughout his enlistment, A1 C 

ecord demonstrates consistently 

excellent performance.  He was named a member of the Superior Performance Team for 

his participation in a "Broken Arrow" exercise simulating recovery of a weapon after an 

aircraft crash; nominated to be a candidate for the Iqellis AFB USAF Pre-Ranger Course; 

received a Letter of Appreciation for his performance of duties in the 991h CES Utilities 

Shop.  See documents attached hereto at Tab 4.  Throughout his enlistment, A I C 

ompleted numerous training schools as reflected in the completion 

certificates attached hereto at Tab 5. 

After his involuntary discharge from the United States Air Force, Mr. 

has continued to train and work in the EOD field.  He has been inducted into the 

international Association for Counterterrorism and Security Professionals and has 

received a Certificate of Appreciation for his contributions to the U.S.  Army Corps of 

Engineers support for protracted combat operations of the Combined Forces Land 

Component Command during Operation Enduring Freedom and Operation Iraqi 

Freedom, fiom April  14,2003 through October 3 1,2003.  See Documents attached at Tab 

6.  Thus, notwithstanding his discharge from the U.S.  Air Force, Mr. 

has 

continued to serve his country by supporting the land combat forces engaged on the 

ground overseas in the combat areas engaged in the War on Terrorism. 

Reasons for  Discharge 

On or about 16 February 1 999, A 1 C 

as given a written order to have 

no contact under any circumstances with the wife of SrA 

That same date, A 1 

acknowledged the order.  See 

Memorandum dtd 16 Feb 99 (attached hereto at Tab 7).  Thereafter, based on allegations 

from SrA 

iends, A1 C-was 

notified that his commander intended 

to impose Article 15, UCMJ punishment for adultery and violation of a lawrul order to 

have no contact with ~r- 

See ~t-ticle 15, AF Form 3070 (attached hereto at 

Tab 8). 

At his Article 15, A1 C 

enied the allegations that he had engaged in 

adultery or that he had knowingly violated an order relating to S 

See A1 C 

ponse to Article 15 and Memo from his ADC (attached hereto at Tab 8). 

Nonetheless, punishment was imposed by the Commander, including, reduction in rank 

to Airman, and restriction to Nellis AFB for 30 days and Extra duties for 30 days.  A 1 C 

ppealed the Article 15, however, his appeal was denied.  See AF Form 3070 

(Tab 8). 

Thereafter, after attending a concert off base with his friends, Airman 

came out of the concert to find his motorcycle had been vandalized and would not start or 

run.  After unsuccessfully seeking assistance fiom friends with pick-up trucks, Airman 

-egan 

to push his motorcycle back to base.  See Statement 

attached hereto at Tab 9). 

While engaged in the pushing of his motorcycle along the highway, a Nevada 

State Trooper pulled over to investigate and determined that A I C 

had been 

drinking and arrested him on suspicion of DUI.  Id.  Thereafter, the civil charges were 

dismissed due to failure of proof that AlC 

ad actually operated his 

motorcycle while drunk. (The evidence showed that the motorcycle was incapable of 

operation as a result of the damage; see Repair Work Order (Tab 10)).  The Air Force, 

however, proceeded to process Airma 

r another Article 15. 

i 

i' 

FD ~ 4 f m  

7;: 

At the Article 15, ~ i r m a n m ' c n i e d  operation of the motorcycle while 

drunk.  The Commander imposed punishment, including reduction to Airman Basic and 

14 days of extra duty.. See Article  15, AF Form 3070 (attached hereto at Tab 11).  In  d.ue 

course, Airma 

appealed the Article 15 and his appeal was denied.  Id. 

On 22 July 1999, Airman 

as notified that he was being processed 

for discharge for misconduct based upon a pattern of misconduct and that the least 

favorable characterization of service h e  might receive - if provided an administrative 

discharge board - was an Under Other Than Honorable Conditions characterization.  See 

Discharge Package (attached hereto at Tab 12).  Airman 

rovided a written 

statement in response to the proposed discharge recognizing that he would be discharged 

and requesting that he receive an Honorable characterization of discharge.  On August 

20,1999, Airman 

as involuntarily separated from the Air Force with a 

"General  Under Honorable Conditions" characterization of discharge.  He was awarded 

an RE-2B re-entry code and a separation code of JKM.  The narrative reason for his 

discharge was "misconduct."  See DD 214 (attached hereto at Tab 13). 

Discussion 

Mr. 

hould not have been discharged and should not have been issued 

a characterization of discharge of General Under Honorable Conditions.  Rather, if he 

was to be discharged, he should not have been awarded any less than an Honorable 

characterization of discharge. 

First, other than the two Article 15's, ~r.-record 

demonstrates 

excellent and honorable performance fully worthy of an Honorable characterization of 

discharge.  His EPRs show honest, faitml and dedicated work hlly supporting the Air 

Force mission. Demonstrating his honorable service are the Rater's and Indorser's 

recommendations for irnmcdiate promotion to Staff Sergeant.  See EPRs (Tab1 & Tab 2). 

Second, the evidence is clear that the Article 15 punishments were unjust because 

they were not supported by even a preponderance of the evidence.  AFI 5 1-202 provides 

that Article 15 should not be imposed unless the charges could be proven at court-martial 

beyond a reasonable doubt.  See AFI 51-202  3.4.  The evidence now available to Mr. 

early shows that this standard has not been met. 

With respect to the adultery allegation, MR 

as charged with 

engaging in adultery - committing sexual intercourse - with 

In or about 

20 August  I 999,-provided 

a written, signed statement not provided to Mr. 

ntil he obtained it in a FOIA request.  In that written statement 

*1IIII1QClbYstated that "we did not have a sexual affair of any nature during the course of 

my marriage to- 

. . .  I only stated that I was involved with him for fear 

of reprisal."  See Memo for Record dtd 20 Aug 1999. (attached hereto at Tab 14). 

Concerning the allegation that Mr. 

iolated an order to have no 

contact with S

r

~

it is clear that the written order provided to Mr. 

n

 

contained no requirement that he have no contact with SrA 

only that Mr. 

I

a

v

e

not contact with SrA L i

 

f

e

.

 As explained by MI-.- 

at the time of the Article 15 and also by his ADC in her memorandum, Mr. 

did not believe the suggestions that he stay "out  of the way"  of S~A-onstituted 

an order.  See ADC Memo (Tab 8) and -tatement 

(Tab 8). 

It is well established that to be guilty of a violation of an order, the accused must 

I 

have actual knowledge of the order.  Knowledge cannot be inferred.  Moreover, it is 

equally well established that an honest mistake of fact is a complete defense to the charge 

of willful disobedience of an order.  The mistake need not even be reasonable, so long as 

it was an honest mistake.  See R.C.M.  916(j),  MCM, United States, Part 11-1 13 (1998 

ed.); Military Judge's  Benchbook, DA PAM 27-9 11 5-1 1; 5-1 1-1.  Mr. 

maintained form the very beginning that he did not believe he had been given a no 

contact order with SrA 

His conclusion was not only honest but also reasonable 

because had such intent actually been intended by CMS 

uch intent surely 

would have been reflected in the written order that he provided to A1C 

time.  That no mention was made of "no  contact7' with S~A-orroborates 

at the 

Mr. 

ontemporaneous statement that he did not believe he had been given such 

an order.  Under these circumstances, punishment should not have been imposed upon 

A1C 

Similarly, imposition of punishment under Article 15 for DUI was improper 

because the motorcycle that Mr. 

as pushing was incapable of being 

"operated."  It had been vandalized and was inoperable.  See Statement of 

- a  

9); see also Work Order (Tab 10).  Accordingly, ~r.-hould 

not have had Article 15 punishment imposed upon him for DUI in the "operation"  of an 

inoperable and non-hctioning motorcycle. 

With respect to the discharge action, Mr 

denied the opportunity 

to have his case heard by an administrative discharge board.  Although he was notified 

that the least favorable characterization he might receive was Under Other Than 

Honorable Conditions, no Administrative Discharge Board was convened to hear the 

evidence in his case.  Instead, to avoid appointment of competent counsel who might 

have made a convincing case for "no misconduct" and retention, the command 

recommended a General Uilder Honorable Cofididons characterization that obviated Mr. 

g

h

t

to a discharge boad.  It is respectfully urged that had ~r- 

 

been provided a fair and impartial fact-finder to consider and evaluate the evidence 

claimed to support "a  pattern of misconduct,"  it is unlikely that he would have been 

discharged at all because the evidence would not meet the preponderance of the evidence 

standard required to establish the "pattern"  nor for separation from the Air Force. 

Because the evidence of misconduct failed to meet the threshold for a finding of 

misconduct, much less a "pattern of misconduct" the administrative discharge of Mr. 

as legal error and injustice entitling him to relief and a characterization of 

discharge of "Honorable." 

Conclusion 

Based upon the foregoing, it is respectfidly requested that this Honorable Board 

grant 

relief in the nature of a change to his characterization fiom 

"General Under Honorable Conditions" to "Honorable"  and change of his re-enlistment 

Code to RE- 1. 

(VA State ~$28048)