AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

NAME OF SERVICE MEMBER (LAST, FIRST MIDD1.E  INITIAI.) 
.................................. 

' - . . - . . - . . - . . - . . - . . - - - - - - - - - - - - - - - I  

~ Y P K  GEN  x 

PERSONAL APPEARANCE 

I 

Co'JNSP." 

NAME OF COIINSLI. AN))  OR OKCANI%A.I.ION 

Na 

YES 
X 

AMERICAN  LEGION 

MEMBER SITTING 

ISSIIE\ 

A01.13 

I  INllFX NllMHFK 

A66.00 

I 

I 

GRADE 

SSCT 

I 

I 

AFSNISSAN 
------------------ 
:....-..-..-..-..-' 

RECORD REVTEW 

ADDRESS AND OH OHGANI%A'I'ION O F  COIINSRI. 

1608 K ST N W WASHINGTON DC 20006 

VOTE OF THE BOARD 

GEN 

UOTHC 

OTHER 

DENY 

I 
I 
EXHIBITS SUBMITTED TO THE BOARD 

I 

I 

I  ORDER APPOINTINU  TllE BOAR13 

I 
2 
3  1  LETTER OF NOTIFIC.4TION 
1  BRIEF OF PERSONNEL  FILE 
4 

APPLICATION  FOR REVIEW OF DISCHARGE 

COUNSEL'S RELEASE TO THE BOARD 
ADDITIONAL EXHIBITS SUBMITTED AT TIME 01: 
PERSONAL APPEARANCE 

I  TAPE RECORDING  OF PERSONAL APPEARANCE HE 

03 Apr 2007 
APPI.IC'AN'l'S ISSUE AND TllE BOARD'S DECISIONAI.  KA'I'IONAI. AH!-  I)IS('IISSbI) ON  I  HP ArI'ACHtL> ,AIR FORCE DlSCllARGE REVIEW BOARD DECISIONAL  RATIONALE 

FD-2006-00194 

Casc heard in Washington, D.C. 

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

IVarnes and votes will  be made availablc to the applicant at the applicant's request. 

X  = Upgradc, Change Reason for Discharge and Ckange Reenlistment Code 

15' 

TO: 

_ k m 3 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - * - p - - - - - - - - - - - - - - - - - - - . - - - - - - - - - - - l  

INDORSEMENT 

u 

FROM: 

DATE:  411012007 

SAITIMRRR 
550 C STREET WEST, SIJITE 40 
RANDOLPH AFH, 'I'X 78 150-4742 

SECRETARY O F T H E  AIR  FORCE YERSONNEI. COIINC'II. 
AIH IrOHC'E 1)ISC'HAHCE REVIEW BOARD 
1535 COMMAND DR. EE WING, 3RD FLOOR 
ANDHEWS AFH, M I )  20762-IUUZ 

AFBQ FORM 0-2077, JAN 00 

(EF-V2) 

Previous edition will be used 

AIR FORCE DISCHARGE REVIEW BOARD DEClSIONAL RATIONALE 

CASE NlIMBEH 

FD-2006-00194 

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

The applicant  appeared and testified  before the  Discharge  Review  Board  (DRB) with  counsel,  at Andrews 
AFB, Maryland, on 03 April 2007. 

The following additional exhibits were submitted at the hcaring: 

Exhibit 5: American Legion Statement - - - - - - - - - - - ,  
Exhibit 6: Character Letter from SSgti 
Exhibit 7: Pennsylvania Driving ~ecGid----------' 

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

FINDINGS:  Upgrade of discharge, change of reason and authority for discharge and change of reenlistment 
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 of discharge. 

ISSUE:  The applicant submitted the following issues: 

Issue 1 : The applicant contends that the discharge was improper because it was based on only two offenses 
of Driving Under the Influence (DUI) for which he received a Letter of Counseling and a Letter of 
Reprimand for DUI.  However, the record reveals that the applicant tested positive in a command-directed 
urinalysis for cocaine.  Although the results of the urinalysis cannot be used for characterization of the 
discharge, it is properly used as a basis.  The Board concluded that the significant negative aspects of the 
conduct outweighed the positive aspects of his military record.  The Board found the characterization for the 
discharge, reason for discharge, and reenlistment code received by the applicant to be appropriate. 

Issue 2 and 3:  The applicant contends the discharge was improper because his right to due process was 
violated because his commander recommended an honorable discharge and that recommendation was not 
presented to the administrative discharge board; and that he was convicted outside the due process when the 
commander decided "that he (applicant) could no loliger serve in the unit." 

The Board found no basis for impropriety in these issues.  The record indicates that the applicant requested a 
conditional waiver to his administrative board based on the applicant's commander recommendation for an 
Honorable characterization.  'The  Staff Judge Advocate (SJA) recommended disapproval and the waiver was 
indeed denied by the Wing Commander.  While the government was restricted by regulation from providing 
evidence of the commander's  recommendation to the board, this fact could have been provided by the 
defense calling the commander as a witness before the board.  As to the applicant's contention that he was 
convicted outside the due process--the commander's  decision, "that he could no longer serve in the unit" is a 
standard procedure in a case like this and not a predetermination of guilt.  The commander is charged with 
weighing the potential safety risks to the applicant and others in his unit against the member's  desires and 
then acting as helshe deems necessary when deciding whether or not the member will be allowed to 
continue in hisher primary duties.  The Board found the characterization for discharge, reason for discharge 
and the reenlistment code received by the applicant to be appropriate. 
. 

Issue 4:  The applicant contends the discharge was improper because the command relied on the testimony 
of a questionable witness and used that testimony at the board without the witnessing appearing before the 
board.  The applicant also contends that her testimony was hearsay and it was not investigated for validity 
prior to his being drug tested.  In the applicant's  opinion, the witness'  accusations were made as a 
"vendetta"  of a former girlfriend upset by recent breakup and that he was set up.  Due to the lack of  any 
compelling evidence supporting this supposition, the Board concluded  that a presumption of regularity was 
appropriate.  The Board further concluded that the characterization of the discharge, the reason for the 
discharge, and the reenlistment code identified were appropriate. 

Issue 5 and 8:  The applicant contends he was sacrificed to "send  a message".  He contends that the 
commander's  recommendation for an Honorable was circumvented by the SJA's recommendation to 
disapprove the waiver request in order to "send  a message."  The Board found no evidence of impropriety 
regarding the issues submitted.  The Board opined that the SJA's intent was to prevent the wing commander 
sending the wrong message, i.e., that an individual convicted of two DUIs could still receive an Honorable 
discharge.  The Board concluded the misconduct of the applicant appropriately characterized his term of 
service and the reason for the discharge and reenlistment code were also appropriate. 

Issue 6 and 7:  The applicant contends that his legal counsel was inadequate and that he was not given 
adequate time to adjust to the actions and accusations against him.  He also contends that his commander and 
counsel misled him when they advised him he would receive an Honorable discharge.  In addition, the 
applicant contends that he should have had access to counsel prior to drug testing. 

The Board found no evidence of impropriety with these issues.  The applicant had the right to refuse his 
counsel's  advice and if he felt his counsel inadequate, had the opportunity to find another.  The applicant's 
submission for a conditional waiver to his discharge board was an option he chose to pursue knowing that if 
denied, he would still face a discharge board and that he could receive a General discharge.  In a command- 
directed urinalysis an individual does not have right to counsel prior to testing; because of this, the results of 
the testing cannot be used in criminal proceedings or nonjudicial punishment and cannot be used for 
characterization in the discharge process.  The Board concluded that the characterization, reason for the 
discharge and reenlistment code were appropriate for the reasons which were the basis for this case. 

Issue 9, 10, and  1 1 : The applicant states that he is a mature person and continues to be a dedicated, hard- 
working family man and a patriotic citizen who desires to resume service to his country.  He is experiencing 
limited opportunities for employment due to his discharge and believes his service deserves an honorable 
recognition characteristic of his performance as documented in his case file.  The Board was sympathetic to 
the impact of the discharge characterization on the applicant, but it is not a matter of inequity or impropriety 
which would warrant an upgrade, or change to the reason for the discharge or the reenlistment code. 

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, reason  for discharge  and reenlistment  code should not 
be changed. 

Attachment: 
Examiner's Brief 

DEPARTMENT OF THE AIR FORCE 

AIR FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB, MD 

(Former SSgt) (HGH SSgt) 

MISSING DISCHARGE DOCUMENTS 

1.  MATTER UNDER REVIEW:  Appl recld a GEN Disch fr USAF McGuire AFB, NJ on 28 
Feb 06 UP AFI 36-3208, para 5.54  (Misconduct -  Drug Abuse).  Appeals for 
Honorable Discharge. 

2.  BACKGROUND: 

a. DOB: 22 Feb 81. Enlmt Age: 19 11/12.  Disch Age: 25 0/12. Educ: HS DIPL. 
AFQT: N/A.  A-49,  E-44,  G-53,  M-46. PAFSC: 3P051 -  Security Forces Journeyman. 
DAS: 15 Oct 03. 

b.  Prior Sv: (1) AFRes 15 Feb 01 -  26 Feb 01 (12 days) (Inactive) . 

3.  SERVICE UNDER REVIEW: 

a.  Enlisted as AB 27 Feb 01 for 6 yrs. Svd: 05 Yss 00 Mo 02 Das, all AMS. 
b.  Grade Status:  SSgt -  01 Jun 05 
SrA -  13 Apr 03 
A1C -  13 Apr 01 

c.  Time Lost:  None. 

d.  Art 15's:  None. 

e.  Additional: Unknown. 
f .  CM:  None. 
g.  Record of SV: 27 Feb 01 -  15 Oct 02  Mc~uire AFB  5  (HAP Dir) 
16 Oct 02 -  15 Oct 03  McGuire AFB  5  (Annual) 
16 Oct 03 -  15 Oct 04  McGuire AFB  5  (Annual) 
16 Oct 04 -  15 Oct 05  McGuire AFB  3  (Annual) 

h.  Awards &  Decs:  AFTR, NDSM, KDSM, AFOSSTR, SAEMR, AFLSAR, GWOTSM, 

NCOPMER, AFOUA W/2 OLCS. 

i.  Stmt of Sv:  TMS:  (05) Yrs  (00) Mos  (14) Das 
TAMS: (05) Yrs  (00) Mos  ( 0 2 )   Das 

4.  BASIS ADVANCED FOR REVIEW:  Appln  (DD Fm 293) dtd 12 May 06. 

(Change Discharge to Honorable) 

ISSUES ATTACHED TO BRIEF. 

ATCH 
1. Applicant's Issues. 
2. DD Form  214. 

calling in and making allegations. I tested 

Issues needing to be considered.  On or about June 2005 I was called back h m  leave to 
support a mission.  When I returned I was called in for a surptise urinalysis, due to an ex- 
with a vmy small amount of 
a controlled substance.  I went in h n t  of an administrative discharge board well knowing 
I could receive other than honorable conditions discharge and testified under oath I did 
not willfully or knowingly ingest a controlled substance.  The governments'  main witness 
was not forced to testify and did not even show up to testify.  The government had no 
witnesses and I had several character witnesses,  A few days before my board, my  lawyer 
asked my commander if he was willing to separate me with an honorable discbatge and 
he agreed.  This was not brought up to-the board members due to a regulation resbictiq 
it.  If the board members would have known that my commander a Lt. Col in the United 
States Air Force wanted to give an honorable disc&e  things may have been different. 
Further more the governments basis was focused on two t r d c  violations thau the 
positive UA. 

violation because I was regarded as an 

I received no punishment for the i%t 
outstanding solider,  The second violation I received a (LOR) Letter of R e p r i  and 
sought a lot of professional counseling h m  the clinic.  But I still did not receive my 
article 15's or weer ending punishment due to my bard work ethic and the fact I sought 
professional help.  In five years of active duty service I was never l a .  for w o k  always 
showed up with a pressed uniform and polished boots and never turned down a 
deployment.  I feel a solider should be looked at 'by the type of performance that was 
conducted the entire time of their career not by two mistakes made by a young man. The 
controlld substance found in my system was such a small amount it could have and was 
slipped into my dtink at a social party a few days before being called back h m  leave. 
Please take the time to consider the other Issues that were som&t 
over looked by the 
board members. 

I - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  

DEPARTMENT OF THE AIR FORCE 

305TH AIR MOBlLl'IY WING (AMC) 

MEMORANDUM FOR 305 AMW/CC 

FROM: 305 AW/JA 

SUBJECT:  Legal Review of Offer of Conditional Waiver of Administrative Discharge Board - 

--------------------------------------. 
.-------------------------------------- 

; 305 SFS 

SSgtj 

I.  You convened an administrative discharge board on 1 8 November 2005 in the subject case. 
The legal advisor set the board date for 18 January 2006 and then delayed it until 19 January 
2006 due a family emergency.  Last night, the Respondent's Counsel in the subject case faxed a 
Request for a Conditional Waiver of the board (Atch 1) to our ofice.  We promptly conveyed it 
to 305 SFSICC, Lt ~oli"-"-'- 3 who responded this morning (Atch 2) recommending approval.  I 
have reviewed the pacKcigeEii legal sufficiency and compliance with AFI 36-3208 and 
recommend that you reject the conditional waiver.  If you concur, I have attached an action 
memorandum for your signature. (Atch 3)  Should you desire to support approval of the 
conditional waiver, I will prepare a forwarding memorandum for your signature to route up to 
1 gth AF/CC for final action. 

L - -  -- --- - - m a  ifaces discharge for having two DWI's  (one off base and 

2.  BACKGROUND:  ~ ~ g t - - - - - - - - - - -  
one on Ft Dix) and for drug abuse (proven by a command-directed positive UA for cocaine 
which cannot be considered in determining characterization of service). 
3.  COMMANDER'S RECOMMENDATION: Lt Cali-------' 
conditional waiver due to his desire to guarantee that the member is separated, the impact on his 
------ 
that SS if the member 
unit 
.---- 
--- - - - l  

is retained through the end of his enlistment, and in recognition of the fact 
has a wealth of support within the unit for his duty performance and 

contributions to the mission throughout this enlistment.  All of these factors combine to convince 
Lt C o l i - - - - - - - - l  
~ e r v i c k i ~ ~ ~ i r w i s c  
so meritorious that any other characterization is inappropriate; and that no 
significant negative aspects of his misconduct outweigh the positive contributions he has made 
since 200 1. 

:generally has met Air Force standards of conduct; that his 

jrecommends accepting the 

--.-..-. 

:that SSgtj 

- - - - - - - - - - - I  

- - - - - - - - - - -1 

3.  DISCUSSION:  Although th&e are no guarantees that the board will discharge SSgt; .-..-..-.> 
I do not believe recommending approval of an honorable discharge for-Eo-DWI's is the right 
message to send, even considering the needs of the unit and S S ~ ~ ;  
performance. 

- - -_- - - - - - - - i record of 

,".  -..-... 

4.  IUECOMMENDATION:  I have reviewed the package for legal suff~ciency and compliance 
with AFI 36-3208 and recommend that you reject the conditional waiver. 

Staff Judge Advocate 

.---------- 
3 Attachments: 
1. i 
2. -~%-S@SICC response 
3.  Action Memo 

i Cond Wvr 

MEMOIUNDUM FOR  LT COL SCOTT ULRlCH 
FROM:  ssgi L - - - - - - - - - - - - - - - - - - l  
SUBJECT: Discharge Under AF'I 36-3208, (Conditional Waiver Statement) 

16 Jan 06 

I have been notified that you are recommending me for discharge a Pattern of Misconduct, 
Conduct Prejudicial to Good Order imd Discipline and Misconduct: Drug Abuse under AFPD 
36-32 and AFI 36-3208, paragraphs 5.50.2 and 5.54, and of the specific basis of the proposed 
discharge. I know that I am entitltll lo request or waive, in writing, tllt fulluwing rights: 

To present my case before an administrative discl~arge board. 

To be represented by military counscl, 

To submit statements in my own bchalf to be considered by the administrative discharge board 
and separation authority. 

Military counsel has been made avuilnble to me. :[ havc bccn notified of my right to enploy 
civilian counsel, if T so desire. 

I hereby offer a conditional waiver of the rights associated with an administrative discharge 
board hearing. This waivcr is contingent on nly receipl of no less than m Honorable 
characterization of discharge, if the recommendation for my discharge is approved. I understand 
that if the convening authority or thc separation authority reject tlis waiver the processing of my 
case will continue according to AFl 36-3208. 

If this discharge is approved, I understand I am not entitled to lengthy service probation 
consideration as described in Section. 6F, Chapter 6. 

I have voluntarily signed this statement and retained a copy of it. 

...................................................................... 

DEPARTMENT OF THE AIR FORCE 

305TH AIR MOBILITY WING 

MCGUIRE AFB, NEW JERSEY 08641 

P- 

-8./yy 

2 1 NOV 05 

MEMORANDUM FOR  STAJ3 SERGEANT: . .-. .. .-. .-.-. .-. .. --- ----- --- - - - - - - - - - - - - - - - - - )  

, - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  

305th Security Forces Squadron 

FROM: 305 AMWIJA 

SUBJECT: Administrative Discharge Under AFI 36-3208 

1.  An Administrative Discharge Board appointed by Special Order AE-3, Headquarters 305" 
Air Mobility Wing, dated 18 November 2005, will convene on 30 November 2005, at 0800 hours 
at McGuire Air Force Base, New Jersey, to receive evidence and make findings and 
recommendations whether to retain you in the Air Force.  Attached is a copy of this order. 

2.  Your rights as a respondent are specified in AFI 36-3208.  You may request the presence of 
any witness whose testimony you believe to be pertinent to your case, specifjlng the type of 
information each witness can provide.  The board will invite witnesses as authorized by the legal 
advisor. 

3.  If you request witnesses, arrangements will be made for military witnesses to be present (or 
invitational travel orders issued to civilian witnesses who are not Federal employees). Approval 
of such requests is contingent upon the following: 

a  The request is made with emugh t h e  to make travel arrangements, and 

b.  The witnesses, in the opinion of the legal advisor, can present relevant and material 

evidence. 

4.  I have attached a list of witnesses, their organization, and station (if civilian, the address), 
expected to be called to appear before the board.  The list is subject.to revision, and I will 
provide notice to your counsel of any changes. 

5.  You may be represented by either a detailed military lawyer or a military lawyer of your 
choosing, if reasonably available.  Civilian counsel may represent you at your own expense. 

6.  You may also request that a postponement for convening the board if you need more time to 
prepare your case.  If the request is approved, a new date will be set for the hearing.  However, if 
you do not request a later date and you do not appear on the date specified for the hearing, the 
board will consider your case on the complete file in your absence. 

7.  Within five (5) calendar days after you receive this notification memorandum, you must 
acknowledge receipt, including in your memorandum of acknowledgment the following: 

a.  Date and time you received this memorandum. 

b.  Name and addresses of any witnesses you want to appear before the board, giving a 

concise summary of the type of information each witness can provide. 

c.  If you would like to postpone the board, a statement that substantiates your request and the 

additional time (not to exceed 10 calendar days) that you are requesting. 

d.  A statement that you doldo not intend to appear before the board. 

7.  Address all correspondence 
08641-5002, Attn: Capt l- - - - - - - - - - - - - - - - - -1 

,...-.-.-....-.-.-.- 

to 305 AMWIJA, 2901 Falcon Lane, McGuire AFB, New Jersey, 

Attachments: 
Special Order Appointing Board 
List of Witnesses 

TO: 305 AMW/JA 

1. I ackno  ledge receipt of the Administrative Discharge Under AFI 36-3208 Memorandum, 
hours on  d /  / ~ L / E P I S ~ / ~ _  
2005. 

dated E[ tJ ov (3.5 

,at  /YS? 

2.  A list of witnesses I want to appear before the ~oar-will 

not be attached. 

3. (@/do  not intend to appear at the Administrative. Discharge Board Hearing. 

L - - -   --------  ........................................ 

Respondent