RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2001-00143

	 	COUNSEL:  

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.	He be allowed to continue his reserve and Wage Grade 11 (WG-11) duties.

2.	He be given full credit for time and pay since the incident; or at least since 26 November 1996, when he was placed on administrative leave.

3.	He be retroactively promoted to the grades of technical sergeant and master sergeant, which he would reasonably have obtained had he not been barred.

4.	The letter, dated 12 December 1996, barring him from Kelly AFB, Texas, be set aside and order that it not be reinstated absent misconduct on the part of the applicant.

5.	He be made “whole” in every way had his only penalty been his Article 15 and the reduction in grade.

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THE APPLICANT CONTENDS THAT:

In essence, the punishment he received for his inappropriate comments on 2 November 1996 was too severe.

The applicant’s counsel states that in September 1996 five workers at Kelly AFB placed small disposable aircraft pillowcases over their heads and drove down the flight line in a maintenance van.  Two African-American men on the flight line took this as racial intimidation and the hoods an attempt to appear as Ku Klux Klan (KKK) members.  As a result of the incident, the two African-American men obtained an attorney, who utilized the media to his clients’ benefit.  Since all of the parties involved in the incident were co-workers who had known each other for a long period of time, tensions were especially high.  In addition, the involvement of the media, certain attorneys, and community leaders only served to fan the flames of racial division.

On 2 November 1996, the applicant was talking to a white co-worker regarding the pillow case incident and that it was unfair that the two African-American complainants were free to utilize their freedom of speech in the media to ruin the reputation of the entire organization and Kelly AFB, but that everybody on base had to keep quiet and just accept the slander they saw almost nightly on the evening news.  To the best of his recollection he stated, “If those n-----s return, they should be shot, and I will be the first one in line.”  The Chief Union steward overheard his statement.

The applicant does not dispute that he deserved some form of punishment for his use of the word “n-----,” and accepted the Article 15 and reduction to the grade of staff sergeant, without appeal.  His commanders assured him that this would be sufficient punishment and that in six months he would be able to sew his technical sergeant stripes back on and would not have to lose his job.  However, he was put on administrative leave and within two days he was barred from the base, and notified that he was being removed from his civil service position.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is currently serving in the Air Force Reserve in the grade of staff sergeant.

Although the applicant’s military personnel records do not contain a copy of the AF Form 3070, Record of Nonjudicial Punishment Proceedings, documentation submitted by the applicant indicates that on 8 December 1996, his commander imposed nonjudicial punishment consisting of reduction to the grade of staff sergeant, to which the applicant did not appeal.  

On 12 December 1996, the applicant was notified by his commander that he was ordered not to reenter or be found within the limits of Kelly AFB, Texas, as a result of his racial slurs and communicated threat to a coworker on 2 November 1996.

An Administrative Discharge Board (ADB) convened on 9 December 1997, and found that the applicant did not communicate the threat to shoot his coworkers but that he had made a false official statement in which he had denied using the words “N-----s,” “shot” or “killed,” and making the statement to the effect that he would be first in line.  The ADB recommended that he be retained and he was returned to a status in which he was permitted to participate for pay and points.  The ADB findings and recommendations were approved on 8 January 1998.

The applicant reenlisted in the Air Force Reserve on 2 February 2000, for a period of six years.

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AIR FORCE EVALUATION:

AFRC/DP recommends the application be denied.  AFRC/DP states, in part, that as the sole decision authority on whether or not the applicant should be allowed to participate within his wing, the wing commander’s decision should be supported.  The welfare of the many in this case should be placed above the desires of one individual to return to a place of previous employment.  The applicant may apply for employment within the Federal sector, and if selected, return to work.  However, the applicant also desires to participate as a reservist at the 433rd Air Wing.  While he may return to Federal employment, if selected, they believe participation as a reservist within the 433rd Air Wing should be left to the purview of the wing commander of that unit who is adamant that he does not want the applicant to participate in his unit.  This decision is based, in part, on the applicant’s admission to the offenses that facilitated his previous disbarment from the installation.  Many of the principal parties are still employed with the wing and contact with the applicant could have catastrophic consequences.

The AFRC/DP evaluation, with attachments, is at Exhibit B.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states that the Air Force position that there would be catastrophic consequences if the applicant were allowed to return to work sums up just how outrageous the position of the base authorities has been and continues to be.  The Board should review the list of penalties the applicant and his family have endured for the use of the word “n-----,” and not initially owning up to it.  He was told that when he accepted the Article 15 that would be the end of it.  The applicant represents no threat to the Air Force community and never has.  A board of officers has already reviewed all the evidence and testimony on this point and concluded that the applicant never made a threat. The two African-American males involved in the incident have moved on and no longer live in the area.  Furthermore, if there was ever a rational basis for doing so in this case, it has long since ceased to make sense.  The current base commander is afraid to stand up to the Chief Union Steward and the applicant has been blocked from performing his reserve duties in the area where he lives, which improperly circumvents the procedures for terminating a reservist.  Counsel contends there is a double standard as evidenced by the Air Force Chief of Chaplains being allowed to take her position despite having said, “African-American chaplains are good pastors and preachers, but cannot do staff work.”

While a wing commander may be entitled to broad discretion in barring offenders from the base, that decision must not be arbitrary and capricious.  The fact that a Union Steward might - quite unreasonably - create difficulties is not a justification for continuing a barment that serves no valid purpose and is, in effect, a circumvention of the proper procedures for terminating a reservist.  The applicant and his family have been punished enough.  The incident occurred while he was on military duty and should not have impacted his civil service employment.

In further support of the appeal, the applicant’s counsel submits statements from two females regarding background information on the Chief Union Steward.

The applicant’s complete responses, with attachments, are at Exhibits D, E, and G.

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ADDITIONAL AIR FORCE EVALUATION:

AFRC/DPZ provided an additional evaluation of the application and indicated the following:

	a.	They recommend approval of his request for award of pay and points for Reserve duty during the period January 1998 (the date he was notified of the AFRC Discharge Board) to August 2002 (the date he accepted the offer to return to a participating status in the Reserve).

	b.	The applicant’s request for retroactive promotion to the grades of technical sergeant and master sergeant should be denied since Reserve enlisted promotions are based upon the member being assigned to a higher graded position, as well as having the recommendation of the supervisor along with the approval of the commander.  As such, in the absence of any documentation to support that he would have met these assignment conditions during the period in question, and in turn, that his supervisor/commander would have promoted him, they find no basis to warrant approval of his promotion requests.

	c.	The question as to how the applicant could obtain a Reserve position somewhere other than the 433rd Air Wing should be closed since he accepted a position with the Air Force Reserve at the Naval Air Station, Joint Reserve Base, at Fort Worth, Texas, in vehicle/equipment maintenance with the 301st Logistics Support Squadron.

	d.	The applicant was not precluded from participating during the period in question; however, his barment from the base and his inability to locate an assignment elsewhere within the Reserve prevented him from participating for pay and points during the period in question.  Thus, his absences from Unit Training Assemblies (UTAs), Annual tours, etc., having been reflected as excused, are appropriate and correct.  In addition, the absences are not reflected in his point history.

	e.	The applicant’s removal from his civil service position was managed via the Merit Systems Protection Board and the removal action was affirmed.

The AFRC/DPZ evaluation, with attachments, is at Exhibit H.

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APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant’s counsel reviewed the additional evaluation and states, in part, that while AFRC/JA is recommending the applicant receive Inactive Duty Training (IDT) and Active Training (AT) pay and points from January 1998 to August 2002, they do not indicate why he should not receive pay and points retroactive to 26 November 1996 (the date he was placed on administrative leave).  In addition, he was due to get a virtually automatic promotion to the grade of master sergeant many years ago because of the position he had.  Even with the reduction in grade, he would certainly have been promoted to at least the grade of technical sergeant over the past seven years if his command had not ignored the findings of the discharge board that he be retained and the order that he be allowed to continue in the reserves.

Even though the applicant used the “N-word” in anger because of what he viewed as a betrayal, a board of officers had already heard the testimony, reviewed the evidence, and determined there was no threat intended.  There is no other evidence to indicate racism on his part and substantial evidence to show the contrary.

The applicant should be considered for a position commensurate with his grade (hopefully master sergeant), his skills, and within as reasonable a distance to his home as possible.  There is no reason why he could not go back to the Lackland AFB area.

If the AFBCMR has the authority to rule of the applicant’s removal from his civil service position, he requests reinstatement based on the same reasons set out previously plus the fact that his use of the “n-word” occurred on military duty.  He has been permitted to resume his military duty so it seems even more sensible to allow him to resume his civil service position since there is absolutely no misconduct alleged to have occurred on his civilian job.

In further support of the appeal, the applicant’s counsel submits documentation to indicate that as a C-5 crew chief he was virtually assured of promotion to the grade of master sergeant.

Counsel’s complete responses, with attachments, are at Exhibits I and K.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the existence of error or injustice to warrant awarding pay and points from 1997 to 2002.  In this respect, we note that on 16 September 1996, five of the applicant’s coworkers donned white pillowcases over their heads and taunted two black coworkers on the flight line.  On 2 November 1997, after learning the five white coworkers received notices of proposed removals and the two black coworkers would be returning to work, the applicant approached the Union Steward and stated, “If those N------ return, they should be shot or killed and I will be the first in line!”  When initially questioned by an AFOSI Special Agent, he denied making the statement; however, he now admits his statement was ill-advised.  The applicant was notified by his commander that he was ordered not to reenter or be found within the limits of Kelly AFB, Texas, as a result of his racial slurs and communicated threat to a coworker on 2 November 1996.  An ADB convened on 9 December 1997, and found that he did not communicate the threat to shoot his coworkers but that he had made a false official statement in which he had denied using the words “N-----s,” “shot” or “killed,” and making the statement to the effect that he would be first in line.  The ADB recommended that he be retained and returned to a participating status.  In view of the ADB’s finding that he did not communicate a threat to a coworker and should be returned to a participating status, we believe corrective action in regard to his request for point credit from 1997 to 2002 is appropriate.  While the applicant requests pay and points retroactive to 26 November 1996 (the date he was placed on administrative leave), we believe his pay should only be made retroactive to the ADB’s finding that he did not wrongfully communicate a threat to a coworker and recommendation that he should be retained in the Air Force Reserve.  In this regard, we note that in the exercise of his discretionary authority, the commander placed the applicant on administrative leave, pending the outcome of the ADB.  Until such time as the ADB determined that he had not communicated a threat to a coworker, there existed no basis for the commander to determine that he should be returned to a participating status, especially considering the racial incident one year earlier and the racial tension that had to have still existed at the base one year later.  We believe the commander would have been negligent in his duties had he not taken appropriate action to ensure the safety of his workforce.  In determining appropriate relief, the Board recognizes that during the five years (1991 - 1995) preceding the 1996 ADB, the applicant earned more than the minimum ADT and IDT points necessary for years of satisfactory Federal service; therefore, the recommended corrective action is based on an average of his participation during the preceding five-year period.  We also note that since he has been participating since 2 November 2002 and given his current participation points, he will have sufficient time to earn a year of satisfactory Federal service prior to the completion of the rentention/retirement year ending 12 September 2003.  In view of the above, we ecommend his records be corrected to the extent indicated below.

4.  The applicant requests that he be allowed to continue his reserve and wage grade duties; however, the Board’s authority is limited to the correction of military records.  As such, the Board is without authority to take corrective action regarding his civilian employment.  We do note, however, that the applicant’s appeal of the removal action was considered and affirmed by the Merit Systems Protection Board (MSPB).  The Director of Personnel, Air Force Reserve Center (AFRC/DP), has indicated that the applicant may apply for employment within the Federal section, and if selected, return to work.

5.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice concerning the remainder of his requests.  The applicant contends that while he deserved some form of punishment for his inappropriate comments, the punishment he received was too severe.  We disagree.  In this respect, we note that although the ADB found that he had not communicated a threat to a coworker, it found that he had made a false official statement to an AFOSI Special Agent, when asked if he had used the alleged language.  Based on the recommendation of the ADB, he was returned to a participation status.  We also note that the commander’s barment order was not solely based on his alleged threat to a coworker, but also his use of racial slurs.  In the interest of security, good order, and discipline of the installation, the commander determined he should be barred from the base.  He could have requested, in advance, to enter the base to report to his organization to participate and chose not to do so.  Action was subsequently taken to involuntarily assign him to the Individual Ready Reserve (IRR) for failure to meet military conduct standards, specifically for his use of threatening and racially offensive language.  After considering the applicant’s submission, the commander determined his return would be detrimental to good order and discipline as well as adversely affecting morale in the wing and offered him a position in the 301st Logistics Support Squadron, which he accepted.  In regard to his request for promotion to the grade of technical and master sergeants, we find no evidence that he should be promoted, or that he has been recommended for promotion to the next higher grade.  Therefore, we find no basis upon which to recommend favorable consideration of the remainder of his requests.

6.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that:

	a.	He was credited with 27 paid active duty training (ADT) and 47 paid inactive duty training (IDT) points during the retention/retirement year 13 September 1997 through 12 September 1998, resulting in 89 total and retirement points and a year of satisfactory Federal service.

	b.	He was credited with 27 paid ADT and 47 paid IDT points during the retention/retirement year 13 September 1998 through 12 September 1999, resulting in 89 total and retirement points and a year of satisfactory Federal service.

	c.	He was credited with 27 paid ADT and an additional 43 paid IDT points during the retention/retirement year 13 September 1999 through 12 September 2000, resulting in 89 total and retirement points and a year of satisfactory Federal service.

	d.	He was credited with 27 paid ADT and 47 paid IDT points during the retention/retirement year 13 September 2000 through 12 September 2001, resulting in 89 total and retirement points and a year of satisfactory Federal service.

	e.	He was credited with 27 paid ADT and 47 paid IDT points during the retention/retirement year 13 September 2001 through 12 September 2002, resulting in 89 total and retirement points and a year of satisfactory Federal service.

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The following members of the Board considered Docket Number BC-2001-00143 in Executive Session on 24 April 2003, under the provisions of AFI 36-2603:

				Vice Chair
				Member
				Member

All members voted to correct the records, as recommended.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Feb 00, w/atchs.
    Exhibit B.  Letter, AFRC/DP, dated 16 Jul 01, w/atchs.
    Exhibit C.  Letter, SAF/MIBR, dated 3 Aug 01.
    Exhibit D.  Letter, Counsel, dated 24 Aug 01.
    Exhibit E.  Letter, Counsel, dated 7 Sep 01, w/atchs.
    Exhibit F.  Letter, AFBCMR, dated 26 Oct 01.
    Exhibit G.  Letter, Counsel, dated 16 Dec 02, w/atchs.
    Exhibit H.  Letter, AFRC/DPZ, dated 23 Dec 02, w/atchs.
    Exhibit I.  Letter, Counsel, dated 6 Jan 03, w/atchs.
    Exhibit J.  Letter, SAF/MRBR, dated 17 Jan 03.
    Exhibit K.  Letter, Counsel, dated 11 Feb 03, w/atchs.

                                   
                                   Vice Chair

AFBCMR BC 2001-00143

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that:

		a.	He was credited with 27 paid active duty training (ADT) and 47 paid inactive duty training (IDT) points during the retention/retirement year 13 September 1997 through 12 September 1998, resulting in 89 total and retirement points and a year of satisfactory Federal service.

		b.	He was credited with 27 paid ADT and 47 paid IDT points during the retention/retirement year 13 September 1998 through 12 September 1999, resulting in 89 total and retirement points and a year of satisfactory Federal service.

		c.	He was credited with 27 paid ADT and an additional 43 paid IDT points during the retention/retirement year 13 September 1999 through 12 September 2000, resulting in 89 total and retirement points and a year of satisfactory Federal service.

		d.	He was credited with 27 paid ADT and 47 paid IDT points during the retention/retirement year 13 September 2000 through 12 September 2001, resulting in 89 total and retirement points and a year of satisfactory Federal service.

		e.	He was credited with 27 paid ADT and 47 paid IDT points during the retention/retirement year 13 September 2001 through 12 September 2002, resulting in 89 total and retirement points and a year of satisfactory Federal service.