AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD
NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) GRADE AFSN/SSAN
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TYPE UOTHC/X PERSONAL APPEARANCE RECORD REVIEW
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ISSUES A94,08 INDEX NUMBER A75.00 sah IRR ap i
1 |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
04 Mar 2010 FD-2008-00591
a es a
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.
. a ‘ i ie : 5 . is * a a y O :
SAF/MRBR SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL
: as 7 wes AIR FORCE ISCHARGE REVIEW BOARD
550 C STREET WEST, SUITE 40 1535 COMMAND DR, EE WING, 3RD FLOOR
RANDOLPH AFIS, TX 78150-4742 ANDREWS AFB, MI) 20762-7001
AFHQ FORM 0-2077, JAN 00 (EF-V2) Previous
CASE NUMBER
AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE FD-2008-00591
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), without counsel, at Andrews AFB on 04 Mar 2010.
The following additional exhibits were submitted at the hearing:
Exhibit #5: Applicant’s Contentions
The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.
FINDING: The Board grants the requested relief.
The Board finds that the evidence of record substantiates an impropriety that would justify a change of
discharge, reason and authority for discharge.
ISSUE: Applicant contends that the discharge was improper. He contends that when the civilian charges
of nonconsensual sodomy were dismissed, he should not have been referred to a trial by General Court-
Martial. Applicant was arrested on 28 Nov 2006 on a charge of anal intercourse without consent with an
adult female. Applicant admits he and the victim had consensual intercourse and later that night he
mistakenly attempted anal intercourse. When the victim said “no” he stopped. He was held in confinement
for 10 days until the county attorney’s office turned down the case for prosecution. When he was released
from confinement, he returned to his unit and continued to perform his normal duties. On 12 Feb 2007 the
applicant’s squadron commander preferred one charge and one specification of forcible sodomy against the
applicant and on 19 Mar 2007 the general court-martial convening authority referred the charge and
specification to trial by general court-martial. On 30 Aug 2007, applicant submitted a request for discharge
in lieu of trial by court-martial. According to applicant’s testimony, he stated that a date for the court-
martial had not been set and his defense counsel advised that he could have requested resignation in-lieu of
court-martial. Although applicant stated that he was under no pressure to sign the request for resignation
with a discharge characterization of Under Other Than Honorable Conditions, he was not advised of any
additional options to request a conditional waiver for a General/Under Honorable Conditions or an
Honorable discharge. Further, based on the 31 Aug 2007 19AF/JA legal review of applicant’s request for
discharge, paragraph 3 states “Credibility of Complainant. Defense asserts that going to trial does not
guarantee a punitive discharge or even a conviction. The alleged victim testified at the Article 32 hearing
that she had been drinking heavily and that she had several memory lapses on the evening in question,
including the time she spent with [the applicant]. Since the alleged victim’s credibility (based on her
testimony at the Article 32 hearing) is somewhat questionable, the potential for acquittal is high.
Furthermore, a discharge would save the government time, expense, and manpower of a fully litigated trial.”
Additionally, a review of applicant’s record and testimony of the applicant revealed no additional
misconduct while member was serving on active duty. After considering the applicant’s records and
testimony, the Board opined that the characterization of the discharge was improper in that the applicant was
discharged for an offense for which the charges had already been dismissed by civilian authorities. The
Board grants the upgrade of the characterization of discharge to Honorable, change the reason and authority
for the discharge, and to change the reenlistment code.
CONCLUSION: The Discharge Review Board concludes that the discharge was inconsistent with the
procedural and substantive requirements of the discharge regulation and finds the applicant was not provided
full administrative due process. In view of the foregoing findings, the Board concludes that the overall
quality of applicant’s service is more accurately reflected by an llonorable discharge, the reason for the
discharge is more accurately described as Secretarial Authority, and the reenlistment code changed to 3K
under the provisions of Title 10, USC 1553. -
Attachment:
Examiner's Brief
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