AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

    

 

 

 

 

 

 

 

 

 

 

 

  
 

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) GRADE AFSN/SSAN
TYPE GEN x | PERSONAL APPEARANCE RECORD REVIEW
SE - NAME OF COUNSEL AND OR ORGANIZATION ADDRESS AND OR ORGANIZATION OF COUNSEL
Mr Charles Lucy 90 S. Cascade Ave St. 1000 Colorado Springs CO
xX 80903
HON GEN UOTHC OTHER DENY
4 +
x +
Xx +
x +
4 +
ISSUES A94.11 INDEX NUMBER A67.50 8 BARY EMIT
A94.06 1 JORDER APPOINTING THE BOARD
A92,.21 2 |APPLICATION FOR REVIEW OF DISCHARGE
A94.55 3 |LETTER OF NOTIFICATION
A92.02 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
18 Feb 2010 FD-2008-00524

      

ANT S ISSUE AND THE BOARD'S DECISIONAL RATIONALE ARE DISCUSSED-ON THE ATTACHED AIR FORCE DISCHARGE SIONAL RATIONALE,

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Case heard in Washington, D.C,
Advise applicant of the decision of the Board and the right to submit an application to the AFBCMR.

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

 

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. : s , DATE: YLZ010 :
TO: _ FROM: ae

SAF/MRBR SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL
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 FD-2008-00524

  
  

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

      

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

  
   

  

The applicant appeared and testified before the Discharge Review Board (DRB), with counsel, Mr. Charles
Lucy of Holland & Hart, LLP, at Andrews AFB on 18 Feb 2010.

  
     

FINDING: The Board grants the upgrade of the discharge. However, the change of reason and authority
for discharge and change of reenlistment code are denied.

  
   
 

ISSUES:

   

The applicant, through his attorney, identified ten issues that would justify an upgrade of his discharge. On
13 October 2004, the applicant was disenrolled from the United States Air Force Academy (USAFA) and

discharged with a general (under honorable conditions) discharge, with a requirement that he reimburse the
United States Government for the cost of his education.

 
      
   

  

The applicant was discharged for violating Air Force Cadet Wing Instruction (AFC WD) 36-2909, paragraph
2.2.9.1, by engaging in sexual intercourse in the cadet dormitories with two female cadets and for violating
AFCWI 36-2909, paragraph 3.7.4.1.3, by having unprofessional relationships with the same two fourth class
female cadets while he was a first and second class cadet.

 
      
   

  

1. Listed as issues: 1, 5, 6, 7 and 8, the applicant contends that his discharge should be upgraded as a matter
of propriety and equity, because it was based upon unlawful command influence and “arbitrary and
capricious action.” The applicant states that unlawful command influence contributed to the decision to
discharge him; that no one else had been discharged or given a general discharge solely for having sex in the
dorms and fraternization, even though the conduct is prevalent; that no one in the Air Force has been
discharged and given a general discharge without some form of underlying disciplinary action; and that
“almost no one discharged by the Air Force Academy (for any reason) receives a General discharge.” The
applicant noted that he was under investigation at the same time that USAFA itself was under investigation
for its handling of sexual assault complaints, resulting in the firing of the Superintendent and the
Commandant. The Board considered the applicant’s contentions, but did not find any evidence of unlawful
command influence. While “sexual assaults at USAFA” undoubtedly resulted in greater scrutiny on
subsequent sexual allegations, the Board did not find any evidence of unlawful command influence or

arbitrary or capricious action.

 
   
     
   
   
   
   
   
   
 
    
 

  

2. The applicant contends that his discharge should be upgraded as a matter of propriety and equity because
it was based upon a denial of fundamental fairness and due process as he was not allowed to call the key
witnesses at this disenrollment hearing IAW AFI 36-2020 (Disenrollment of United States Air Force
Academy Cadets). The applicant requested the presence of C4C LB to review her sworn written statements.
The hearing officer stated that “no witnesses would be called simply to review statements that we already
had.” The applicant did not object to this ruling on the record. Furthermore, in his response to the Hearing
Officer’s Report, the applicant’s defense counsel did not object to the fact that C4C LB was not present at
the hearing. Despite C4C’s absence, the hearing officer did not find that the applicant wrongfully coerced
C4C LB into having sexual intercourse. In addition, the applicant admitted to the four offenses specified
above, wrongfully having sex and engaging in unprofessional relationships with two fourth class female
cadets.

3. The applicant contends that his discharge should be upgraded as a matter of propriety and equity because
the Academy was allowed to unreasonably multiply the charges against him. The applicant contended that
the offenses of “sexual conduct in the cadet dorm” and “engaging in an unprofessional relationship” were
essentially one course of conduct and therefore, should not have been charged separately. The Board found
that the offenses could be distinguished. Paragraph 2.2.9.1 prohibits sexual intercourse in the dormitories
and at the Academy, while paragraph 3.7.4.1.3 prohibits sexual relationships between a fourth class cadet
and any first, second or third class cadet (an unprofessional relationship).

4. The applicant contends that his discharge should be upgraded as a matter of propriety and equity because
he did not engage in “misconduct as required by 10 USC §2005(a)(3); therefore, his service was honorable.
The Board found that a violation of a punitive regulation (AFCWI 36-2909) is “misconduct” as specified in

10 USC §2005(a)(3).

5. In allegation 9, the applicant contends that his discharge should be upgraded as a matter of equity because
of his otherwise exemplary military record. The Board noted that other than the misconduct that formed the
basis for his discharge, he had a good GPA and no Article 15s, Letters of Reprimand or UIF, or any other
derogatory information. The Board found the applicant willfully violated the AFCWI 36-2909 (Conduct
Standards) on numerous occasions and when another cadet warned him not to engage in such conduct, he
did not appear to care and continued to willfully violate the instruction. However, in light of the applicant’s
otherwise outstanding record, the Board found that while his offenses warranted disenrollment, an honorable
discharge is a more appropriate characterization. The applicant did not receive any disciplinary action for
the underlying offenses and three of the original seven allegations that formed the basis for the disenrollment
were not substantiated by the hearing officer. Therefore, the Board found that as a matter of equity, the
applicant’s discharge should be upgraded to an honorable discharge.

6. In allegation 10, the applicant contends that his discharge should be upgraded as a matter of equity
because of his exemplary record since leaving the Air Force. The applicant had received his undergraduate
degree at North Carolina State University and is pursuing a master’s degree while he is employed with
General Electric. The Board positively noted these accomplishments.

CONCLUSION: 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 the applicant was provided full administrative due process. However, in view of the
foregoing findings discussed in paragraph five above, the Board concludes that the overall quality of
applicant’s service is more accurately reflected by an Honorable discharge.

Attachment:
Examiner's Brief