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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26159
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am an E-5 in the Air Force. I have been notified of Administrative

Resolved Question:

I am an E-5 in the Air Force. I have been notified of Administrative Demotion Action Under AFI 36-2502 for failure to fulfill NCO responsibilities as outlined in AFI 36-2618 Enlisted Force Structure Chapter 4. Looking at demotion to SrA E-4. I was recently pulled over in Italy and had a BAC of .063. I was given an initial LOR. I also received a fine and license suspension from the Italian side. I had a similar incident in 2011 with a BAC of .056 but only received a LOR/UIF. I am separating from the Air Force with a DOS of 29 September 2013. I have the option to concur or non-concur with the action within 3 days. How can this affect my separation and discharge status?
Submitted: 10 months ago.
Category: Military Law
Expert:  P. Simmons replied 10 months ago.
Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.

Sorry...not sure I understand what you mean by "How can this affect my separation and discharge status?"

You want to know if this will impact your discharge (like if you will be discharged at the end of your contract)?

Or if it will impact your discharge rank?

Customer: replied 10 months ago.

right now i have an Honorable discharge. Can this affect this and also does it affect my discharge rank as well?

Expert:  P. Simmons replied 10 months ago.
Thanks

Just a moment, I need to pull the reg
Expert:  P. Simmons replied 10 months ago.
Can you tell me

1. Have you had any prior Art 15's?

2. How long till your end of contract?
Customer: replied 10 months ago.

I have had a prior Art 15 back in 2005. My current contract ends 29 September 2013.

Expert:  P. Simmons replied 10 months ago.
Thank you

There are a few things that you should be aware of.

1. If you are administratively reduced? That is considered an "administrative action", meaning it is no judicial (like a court martial)

further, it is also considered non punitive. So it is not like Art 15 which is punitive.

So the reduction is not, in and of itself, going to impact your discharge, other than to change the rank at which you are discharge (assuming the reduction takes effect pursuant to the board).

It will not impact the characterization of your discharge (so if nothing else happens, you will get an honorable discharge)

HOWEVER, the administration reduction does not prevent other judicial or other non judicial action. So, for example, the commander could, independent of the administrative reduction, seek to process you for administrative separation under AFI 36-3208 for the misconduct. If they go this route they could try and give you a "general" discharge or an "other than honorable" conditions discharge.

Now...they have to give you notice, in writing, before they can separate you...and with your contact almost over (2 weeks left) unless they move very quickly they are not going to be able to separate you for the misconduct. In order to separate administratively you and give you a less than honorable discharge they must give you notice, in writing and the chance to respond.

If they have not done this yet? It may be it never happens.

But to answer your question, COULD this incident (the DUI) impact your discharge characterization? It could...but again, only if the command acts quickly.

Also, I will say it would be unusual for a command to go to the effort of administrative reduction if the plan was to administratively separate. That would not make much sense, since if the Airman is administratively separated for misconduct, there is an automatic reduction to E3. So I doubt it will happen in your case, but it possible, at least in theory


P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26159
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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