Airman’s Discharge Upgraded to Honorable, Narrative Reason for Discharge Changed, and RE Code Changed to Eligible for Reenlistment
More than four years after his Administrative Discharge Board recommended a suspended separation (probation and rehabilitation) with a General (Under Honorable Conditions) discharge for Commission of a Serious Offense, Senior Airman (SrA) Z appeared in person before the Air Force Discharge Review Board (DRB). Eight weeks after his appearance, SrA Z received the DRB’s decision, unanimously finding his discharge was improper and inequitable.
Background: SrA Z was the victim of a scam that aggressively targeted junior enlisted personnel to order expensive prescription creams that were prescribed by doctors. Tricare paid exorbitant amounts for these creams. This was a nationwide scam that ended with many doctors, “marketers”, and pharmacists being prosecuted and convicted in federal court. SrA Z was simply an end-user who had been recruited to use the creams by his NCO, who promised they would help SrA Z heal faster after his cross-fit workouts and mixed martial arts bouts. For helping out his NCO, who was a “representative” for the pharmaceutical company, he would be paid $100 per month. After SrA Z visited a doctor as directed to by his NCO, they came like clockwork every month (auto-ship). SrA Z used the cream with some benefit, but the auto-ship was too much and, when the pharmacy called him to renew the prescription, he declined. He received approximately $900.
The Administrative Discharge Board: Several dozen Airman at SrA Z’s base were involved in the scam. The NCO and doctor were prosecuted and convicted in federal court. Some Airmen chose to voluntarily leave the service. Some received Letters of Reprimand but were not processed for separation. SrA Z’s Wing Commander processed him for separation and actually appeared at his discharge board and referred to SrA Z as a “cancer” though he had never met SrA Z before and had no knowledge of his work performance. He testified that everyone related to the scam should be separated with an Other Than Honorable discharge and that those who were not separated did not fall under his command.
He made all of these comments over Mr. Korody’s very vocal objections and the direction of the legal advisor who advised the statements were inappropriate. He clearly wanted to intimidate the Board members. The Board found the misconduct (fraud) was committed, recommended separation (suspended with probation and rehabilitation), and a General (Under Honorable Conditions) discharge.
Discharge: Despite the recommendation for probation and rehabilitation and a detailed Letter of Deficiency identifying the inappropriate conduct of the Wing Commander by Korody Law, the General Officer over SrA Z separated him with a General (Under Honorable Conditions) discharge.
Paper Submission to Air Force Discharge Review Board: SrA Z waited 2 years to file an application with the DRB. In the submission, Korody Law outlined the legal errors at the board including the commander’s conduct; SrA Z’s meritorious record of service; the specific circumstances of the alleged misconduct and involvement of the NCO; the lack of proportionality in the treatment of all Airmen involved; and SrA Z’s good conduct post-Air Force. To support this submission, Korody Law filed several Privacy Act and Freedom of Information Act requests. We also took a video recorded statement from SrA Z regarding the circumstances of his separation and what he has done since his separation. Unfortunately, the DRB denied this application.
Personal Appearance Before Air Force Discharge Review Board: SrA Z desired to personally appear before the DRB to make his case. If a paper submission is denied by the DRB, the applicant can request to personally appear. Previously the applicant was required to travel to the location of the DRB in Washington, DC, but the DRB has leveraged technology and SrA Z and Mr. Korody were able to appear by Teams before the DRB panel, which consisted of a Colonel and two senior NCOs. Mr. Korody made an opening statement setting out the fraud scheme, the legal and equitable errors stemming from the administrative discharge board and the discharge, and SrA Z’s good character. Mr. Korody and SrA Z then engaged in a question and answer exchange before the board members asked questions. The members focused in on the commander’s conduct at the board and the treatment of similarly situated Airmen and SrA Z’s specific role in the Tricare cream scam.
The Personal Appearance Air Force Discharge Review Board Decision: With the permission of SrA Z, the following are actual excerpts from the DRB’s written decision upgrading SrA Z’s discharge to Honorable and changing his narrative reason for separation and reenlistment code.
A review of the applicant’s record revealed he was the subject of an OSI investigation involving prescription medication fraud in the applicant’s unit. It was reported an NCO in the unit conspired with a local doctor to write fraudulent prescriptions for other members in the unit, to include the applicant. The NCO then paid the applicant, as well as the other members, a “rebate” when TRICARE reimbursed the pharmaceutical company the prescriptions were from. OSI discovered during a UTA weekend the NCO approached the applicant and asked him if he would be interested in receiving pain ointment. The applicant reported he was an avid athlete and mixed martial arts fighter who suffered from frequent muscle pain and visible scars and the NCO offered to set him up with an automatic shipment prescription plan. The NCO also relayed the applicant would receive a monthly “rebate” for using the pain ointment and supporting the company. The NCO also directed the applicant to see the local doctor he was conspiring with to get a physical to give the transactions an air of legitimacy. TRICARE in-turn paid the pharmaceutical company approximately $171K for the applicant’s claims.
The applicant’s counsel argued that the NCO ring leader portrayed himself as a pharmaceutical representative and convinced several Airmen in the unit to participate in the scam. The applicant cancelled the auto shipments approximately 9 months later as he no longer wanted to use the products. The applicant claimed he was not aware his participation in the scam could be considered fraudulent. He trusted both the NCO and the doctor that were involved and thought their activity was legal. The NCO and the doctor were both later found guilty of a nationwide TRICARE scam.
Additionally, counsel argued that at the applicant’s discharge board hearing the applicant’s commander was unduly aggressive towards the applicant as well as the board members and unnecessarily intimidated them. The commander testified he had never met the applicant, and did not intend to, and that everyone involved in the fraudulent activity should be discharged. He also referred to the applicant as a “cancer in the unit” and personally tried to influence the outcome of the board based on his own uniformed opinions of the applicant’s involvement in the scam.
Finally, counsel argued the board found the applicant did commit misconduct, however, the board recommended suspension of the discharge with probation and rehabilitation. Despite this recommendation, the applicant’s otherwise blemish-free career, and he was cut one day short of his ETS, the applicant was discharged with a General service characterization.
The DRB determined, through the applicant’s testimony, there were irregularities in the government’s actions. Also, the evidence presented to the board that was not available at the applicant’s discharge board hearing indicated the applicant had no intention to defraud the government. The DRB concluded that although the applicant’s involvement in the scam was not proper, his misconduct did not outweigh his positive contributions. Additionally, the evidence revealed other similarly situated Airmen in the unit received less severe punishment than the applicant, therefore, the DRB found the applicant’s discharge was unduly harsh.
FINDING: The DRB voted unanimously to approve the applicant’s request to upgrade his discharge characterization to Honorable, to change the discharge narrative reason and associated separation code to Secretarial Authority, and to change the reenlistment eligibility code to 1.
CONCLUSION: After a thorough review of the available evidence, to include the Aplicant’s issues, summary of service, service/medical record entries, and discharge process, the Board found the discharge was improper and inequitable. Therefore, the awarded characterization of service shall change to Honorable, the narrative reason for separation shall change to Secretarial Authority, with a corresponding separation code, and the reentry code shall change to 1.
The lessons from SrA Z’s case are clear. First, object and fight any administrative separation. Second, if you do not get a favorable outcome at the board, document the legal errors in a Letter of Deficiency. Third, if you feel like your discharge is improper or inequitable, apply for to the Discharge Review Board. Finally, do not pass up the change for a Personal Appearance.
Korody Law, PA represents Soldiers, Airmen, Marines, Sailors and Coastguardsmen seeking to have their discharge characterization upgraded, reenlistment code changed, and/or narrative reason for separation changed. Korody Law has handled cases before the Army Discharge Review Board, the Air Force Discharge Review Board, the Navy Discharge Review Board, the Army Board of Corrections for Military Records, the Navy Board of Corrections for Military Records, the Air Force Board of Corrections for Military Records, and the Coast Guard Board of Corrections for Military Records. Mr. Korody has been practicing military law for close to 20 years.