AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD
NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)

   
 
    
     

AFSN/SSAN

 

xX PERSONAL APPEARANCE RECORD REVIEW

NAME QF COUNSEL AND OR ORGANIZATION ADDRESS AND OR ORGANIZATION OF COUNSEL

78 CLARK MILL ROAD WEARE NH 03281

 

 

 

GARY MYERS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 

 

 

 

 

Ce
HON GEN UOTHC OTHER DENY
X*+
xF+

8 seasil ss
xX
X*+
x
ISSUES A94.56 INDEX NUMBER A94.07 eo es at 1 E BOARD. aT

] |]ORDER APPOINTING THE BOARD

2 | APPLICATION FOR REVIEW OF DISCHARGE

3 |LETTER OF NOTIFICATION

4 |BRIEF OF PERSONNEL FILE

 

 

COUNSEL’S RELEASE TO THE BOARD

ADDITIONAL EXHIBITS SUBMITTED AT TIME OF
PERSONAL APPEARANCE

TAPE RECORDING OF PERSONAL APPEARANCE HEARING

 

 

 

 

HEARING DATE CASE NUMBER

 

 

 

15 Dec 2009 FD-2008-00402
c : : THEATTACHED AIR FORCE DISCHAR

 

ee

Case heard in Washington, D.C.
Advise applicant of the decision of the Board.

Names and votes will be made available to the applicant at the applicant’s request.

DATE: 1/19/2010

 

 

 

 

SAF/MRBR SECRETARY OF THE AIR FORCE PERSONNEL COUNCUL
ian eae AIR FORCE DISCHARGE REVIEW BOARD
550 C STREET WEST, SUITE 40 1535 COMMAND DR, EE WING, 3RD FLOOR
RANDOLPH AFB, TX 78150-4742 ANDREWS AFB, MD 20762-7001
AFHQ FORM 0-2077, JAN 00 (EF-V2) Previous
CASE NUMBER

     
    
     
   
      
       
    
     

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE | py 003-00402

  

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

The applicant was offered a personal appearance before the Discharge Review Board (DRB) and elected to
exercise his right.

The following additional exhibits were submitted at the hearing:

 
 

Exhibit 5: Correspondence Letter
Exhibit 6: Letters of Appreciation

Exhibit 7: Utility Worker Union Card

Exhibit 8: Utility Worker Union Manual

Exhibit 9: Utility Worker Pay Scale

Exhibit 10: Certificate of Completion (Neighborhood Housing Services).

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

FINDINGS: The Board grants the requested relief.

 
 
   
   
 
     
   
   
    
  

The Board finds that neither the evidence of record nor that provided by applicant substantiates an
impropriety that would justify a change of discharge. However, based upon the record and evidence

provided by the applicant, the Board finds the applicant’s characterization, reason and authority for
discharge and reenlistment code inequitable.

  

ISSUE: The applicant contends that his command committed an error of law, procedure and discretion by
granting his request for discharge in lieu of court-martial (Chapter 4), and thereafter requiring him to testify
in another case under a grant of immunity. The applicant further contends that after his testimony, the

applicant was tried by a summary court-martial for perjury and acquitted. The applicant argues that “at the

moment the applicant was tried for perjury, the request for discharge in lieu of court-martial was either
withdrawn by operation of law or breached as a matter of contract.”

  
    
     
   
   
   
   
     
 
   
   

The Board found no merit in the argument that the applicant’s testimony under immunity after his Chapter 4
request breached a contract between him and the Government. In the applicant’s request for discharge in
lieu of court-martial, the applicant acknowledged that he understood the elements of the offense with which
he was charged and that he understood that if approved, his discharge may be “under other than honorable
conditions and the possible consequences thereof.” Furthermore, a submission of a Chapter 4 is not an
admission of guilt, but a means by which a member may request to be administratively discharged in lieu of
trial by court-martial. In addition, the applicant’s command did not prefer charges against the accused for
“use of ecstasy,” but for perjury for his testimony during a companion case. The Board did not find merit in

the applicant’s argument that by being ordered to testify under a grant of immunity, his request for discharge
in lieu of trial by court-martial was breached as a matter of contract.

  
  

The applicant also contends that he was never convicted of a crime; he served honorably, and has

noteworthy post-service conduct. Therefore, as a matter of equity, his discharge under other than honorable
conditions is not equitable.
The Board finds that relief is warranted based upon consideration of the evidence presented to the DRB as

well as the applicant’s service record. The Board noted that the applicant had served almost four years of a
six year enlistment prior to his discharge.

  
  
      
   
   
   
   
   
   
 
   
     
   
   
   
   
 
    
     
   
   
   
   
   
   
   
   
   
   
     
   
    
   
 

On 4 April 2003, the applicant’s commander preferred one charge and one specification against the applicant
under Article 112a, UCMJ, for use of ecstasy on 25 May 2002. On 7 April 2003, the charge was referred to
trial by special court-martial. On 9 April 2003, the applicant submitted a Chapter 4 request. On 25 April
2003, 48 FW/CC in a memorandum to 3 AF/CC, recommended that the Chapter 4 request be approved. 48
FW/CC noted that the Government’s evidence against the applicant was the testimony of Airman F, who
was “expected to testify that [the applicant] appeared to be under the effects of ecstasy.” In a 23 January
2003 interview with the AFOSI, Airman F told the OSI that in May 2002, he, Airman M and the applicant
were in a dorm room and Airman M told him that “they” had all used ecstasy. In addition, during the same

interview, Airman F told the AFOSI that Airman L and the applicant both appeared to be very messed up in
May 2002 while they were in the dorm room.

  

On 9 May 2003, 3 AF/CC approved the applicant’s Chapter 4 request. Subsequently, on 12 May 2003, the
applicant was ordered to testify under a grant of immunity at the court-martial of Airman L. During his
testimony at Airman L’s court-martial, the applicant testified that he had not used ecstasy on 25 May 2002
and that Airman M did not give him ecstasy on 25 May 2002. Based upon the alleged perjured testimony,
on 23 May 2003, the applicant’s commander preferred one charge and specification under Article 131,
UCMB, perjury, to trial by summary court-martial. On 2 June 2003, the applicant pled not guilty to the
perjury charge and was found not guilty by the summary court-martial. The applicant was represented by
the same defense counsel during his Chapter 4 request and the summary court-martial. On 9 September

2003, based upon his Chapter 4 request, the applicant was subsequently administratively separated from the
Air Force with an under other than honorable conditions discharge.

During his testimony, the applicant stated that he did not use ecstasy in May 2002 or any other time in his
life. The applicant’s pre-enlistment paperwork indicates that he did not have pre-service drug use. The
applicant asserted that he felt compelled to submit the Chapter 4 due to an issue he had with the anthrax
vaccine, In late 2002, the applicant had declined to be inoculated with the anthrax vaccine in conjunction
with a deployment to Oman. The applicant requested more information about the vaccine before being
inoculated and he was subsequently removed from the deployment. The applicant stated he believed he
could still face charges under Article 92, UCMI for his failure to obey a lawful order in that he still had not
received the anthrax vaccination—thus he believed that submitting the Chapter 4 was his best alternative.
The applicant’s testimony during the DRB was corroborated by a written statement from an active duty
technical sergeant who was stationed with him as well as an e-mail the applicant provided, which refers to
the appointment with a doctor who was going to meet with the applicant to answer his questions about the
anthrax vaccine. The Board found that the applicant was truthful and sincere during his testimony. For all

of the foregoing reasons, as a matter of equity, the Board finds that the applicant’s discharge should be
upgraded as requested.

CONCLUSIONS:

  

In view of the foregoing findings, the Board concludes that the overall quality of applicant’s service is more

accurately reflected by an Honorable discharge, the reason for the discharge as Secretarial Authority and
reenlistment code changed to 3K under the provisions of Title 10, USC 1553.