RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-00662
		INDEX CODE:  110.03, 126.04
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His nonjudicial punishment under Article 15 of the Uniformed Code of Military Justice (UCMJ) be set aside

2.  He be reinstated to active duty and provided retroactive pay and benefits.

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APPLICANT CONTENDS THAT:

On 3 Mar 98, he was notified by his commander of her intent to impose punishment under Article 15, of the Uniformed Code of Military Justice (UCMJ), for adultery, failure to obey a lawful order, dereliction of duty, and failure to go.  He was also given a no-contact order.  He soon learned that unlawfully recorded telephone conversations, which were made without the consent of either party being recorded, were being used as evidence for the alleged adultery charge.  The recordings were made by SSGT 1----, who suspected that his wife was having an extramarital affair with another individual, SSGT 2----.  The recordings were also used in nonjudicial punishment proceedings against SSGT 2----.  SSGT 1---- recorded conversations between his wife and Mrs. XXX, and between his wife and the applicant.  After listening to the recordings, SSGT 1---- was convinced that the applicant was having an affair with MRS. XXX---- and turned the tapes over to the Security Forces.

He and his counsel responded to the Article 15 proposal and provided a statement from MRS. XXX---- in which she denied the adultery allegations.  His counsel also addressed the Federal and State Wire Tapping Statutes that were violated and asked that the allegation be stricken from the Article 15.  He asked that he be allowed to review the recordings but his request was refused.  Throughout the Article 15 proceedings, his commander denied his attorney and himself access to the tapes, in direct violation of nonjudicial punishment procedures.  

Applicant filed an inspector general (IG) complaint.  The IG responded and stated that he was advised that his counsel was permitted to review any and all evidence related to his case, which was impossible because his counsel was stationed in Idaho and he was in Washington.  The IG also stated that the rules of evidence, other than with respect to privileges, do not apply to nonjudicial proceedings.  However, what the IG failed to point out is that in accordance with the Manual for Court-Martial (MCM) interception of wire and oral communications must be excluded under the Fourth Amendment as applied to members of the armed forces.  

In his appeal to the Article 15 punishment, his counsel made it clear that after speaking to MRS. XXX---- and her husband, confirmation was given that he had not spoken to her, in violation of his no-contact order.  His commander responded to the appellate authority and informed him that she personally listened to the recorded conversations and was convinced he was having an affair.  His commander had advised both of SSGT 2----'s attorneys that she never personally listened to the tapes.  In actuality, she did not listen to the recordings, but relied upon a memorandum written by the first sergeant after he listened to them, thus violating wiretapping statutes by listening to and disclosing the content of the tapes.  The applicant was subsequently discharged from the Air Force.

On 10 Nov 98, due to the nature of the unlawfully obtained evidence, SSGT 2----'s Article 15 punishment was set-aside by the wing commander, however, the applicant's Article 15 was not.  He filed a lawsuit against the Air Force but was prohibited by the Ferres Doctrine from filing suit against the military or petitioning for the reversal of his discharge.  The Federal judge ruled that the military did in fact violate both Federal and State wire tapping statutes and his constitutional rights; and, that his commander had violated those same statutes, but was given immunity in a quasi-judicial manner.

In support of his request applicant provided documents associated with his Article 15 punishment, excerpts from the MCM, documents associated with his IG complaint, extracts of documents associated with U.S. District Court for the Eastern District of Washington proceedings, a memorandum from his first sergeant, copy of a U.S. Court of Appeals decision, extract from a Security Police Report of Investigation, set aside of Article 15 memorandum, and documents associated with his congressional inquiries.  His complete submission, with attachments, is at Exhibit A. 

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 4 Oct 85.  He continually served on active duty and was progressively promoted to the grade of staff sergeant, having assumed that grade effective and with a date of rank of 1 Nov 94. 

On 3 Mar 98, applicant was notified by his commander of her intent to impose nonjudicial punishment under Article 15, UCMJ.  The specific reasons for this action were that on 12 Feb 98, he was derelict in the performance of his duties in that he negligently failed to secure patient related paperwork and straighten up his work station; on or about 20 Feb 98, he failed to obey a no-contact order; on or about 9 Feb 98, he failed to go to his appointed place of duty; and, on or about 1 Jan 98 and on or about 15 Feb 98, he wrongfully had sexual intercourse with a married woman, not his wife.  He was advised of his rights in this matter and after consulting counsel; he waived his right to demand trial by court martial, accepted Article 15 proceedings, and provided written presentations to the commander.  On 9 Mar 98, the commander found that he did commit one or more of the offenses alleged and imposed punishment on him consisting of reduction in grade to the rank of senior airman, forfeiture of $100 pay per month for 2 months, and 14 days of extra duty.  Applicant submitted an appeal to his Article 15 punishment.  After consideration of the facts and the applicant's appeal, the appellate authority suspended the portion of his punishment, which consisted of forfeiture of 2 months pay for 2 months.

On 14 Apr 98, the applicant was notified by his commander that she was recommending he be discharged from the Air Force under the provisions of AFPD 36-32 and AFI 36-3208, for unsatisfactory duty performance and a pattern of misconduct consisting of conduct prejudicial to good order and discipline.  The specific reasons for this action were the aforementioned Article 15 punishment; on 12 Apr 96, he received Article 15 punishment for stealing 25 Erythromycin tablets, property of the U.S. Government and unlawful possession and distribution of a legend drug without prescription; he received letters of counseling on 7 Mar 96, 17 Sep 96, 28 Feb 97, 6 May 97, and three on 16 May 97; and, he received a letter of reprimand on 16 May 97.  He was advised of his rights in this matter and acknowledged receipt of the notification on that same date.  After consulting counsel he elected not to waive his right to an administrative discharge board.  The administrative discharge board found that he did commit all of the offenses alleged and recommended that he be discharged from the Air Force with a general (under honorable conditions) discharge without probation and rehabilitation.  In a legal review of the case file, the acting staff judge advocate (JAG) found the case legally sufficient.  On 7 Aug 98, applicant was discharged from the Air Force with a general discharge without probation and rehabilitation.  He served 12 years, 10 months, and 4 days on active duty.

The following is a resume of the applicant's Enlisted Performance Report (EPR) profile:

	PERIOD ENDING		PROMOTION RECOMMENDATION

		25 Dec 97		2 - Referral Report
		25 Dec 96		3 - Referral Report
		26 Dec 95		4
		26 Dec 94		4
		29 Mar 94		4
		14 Jun 93		4
		14 Jun 92		4
		01 Nov 91		3
		01 Nov 90		5
		16 Apr 90		4

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.  JAJM states that nonjudicial punishment provided commanders with an essential and prompt means of maintaining good order and discipline for violations of the law and also promote positive behavior changes in service members without the stigma of a court-martial conviction.  Accepting the proceedings is simply a choice of forum, not an admission of guilt.  By electing to resolve the allegation in the nonjudicial forum, he placed the responsibility to decide whether he committed the offenses with his commander.  There was sufficient evidence for the commander to determine that he committed the offenses alleged.  While a different fact finder may have come to a different conclusion, the commander's findings are neither arbitrary nor capricious and should not be disturbed.  

He claims that the particular evidence of the adultery allegation should not have been considered.  He filed suit against the Air Force and several individuals alleging that in using and disclosing the information of the tapes, the Air Force violated the Federal Wiretap Act and are liable for damages.  The Federal District Court dismissed all claims against the Air Force, although claims are pending against certain individuals.  The Department of Justice has appealed the failure of the District Court to dismiss all claims.  The position of the Department of Justice, the Department of Defense (DoD) and the Air Force is that the opinions of the Ninth Circuit Court of Appeals are not applicable to military criminal practice.  The primary issue is whether military criminal law is governed by the UCMJ and the judicial rulings of the U.S. Supreme Court, U.S. Court of Appeals for the Armed Forces, and the Air Force Court of Criminal Appeals; or, is it subject to the differing interpretations of various district courts and courts of appeal.  The issue is highlighted in this particular case as federal law in this area is not settled as the circuit courts of appeal conflict in their holdings.  

No one disputes that the military member had no authority to tape phone conversations without either participant's permission.  The dispute arises as to whether that evidence may be used to support nonjudicial punishment.  Military Rules of Evidence (MRE 317) do not apply to nonjudicial punishment as claimed by the applicant and if they did apply it is far from clear if they would have required the suppression of the evidence.  Federal circuit courts of appeal are split on whether a government agency which does not participate in the illegal taping may use the recordings for other proper purposes.  It is clear that by direction of the President, the rules of evidence applicable to court-martials do not apply to procedures under Article 15.  Article 15 punishment is a proceeding denominated by Congress as "nonjudicial," which provides only for rather modest penalties and which does not constitute a criminal conviction, rather nonjudicial punishment is an administrative method of handling minor offenses and is not a criminal prosecution.  Since it is not considered a conviction of a crime it has no connection with the military court-martial system.  The Court of Appeals for the Armed Forces recognized that Article 15 punishment may be imposed without the essential attributes of a criminal trial, such as confrontation of adverse witnesses, representation by counsel, and reliance of formal rules of evidence.  This is a classic case of an individual seeking to have the benefits of disposition of criminal offenses in a nonjudicial forum with limited powers of punishment, but seeks to have the full protection of a full criminal trial.  Because the investigators acted properly and with "clean hands" the applicant's commander appropriately considered the matters on the tapes.  The JAG does not recall specifically whether his attorney listened to the tapes, but recalls making them available to any defense counsel who wished to listen to them.  He elected not to relinquish control of the tapes but made them available and at least one counsel listened to them.  

The applicant overlooks the other allegations disposed of by this nonjudicial punishment, even if the adultery allegation is disregarded, the commander also found he had committed the offenses of failure to go, dereliction of duty, and failure to obey the no-contact order.  While he restates his innocence, his arguments were unpersuasive before the commander and the appellate authority and they are unpersuasive now.  The evidence without the adultery allegation, or even if the entire Article 15 were set aside, is sufficient to uphold his administrative discharge.  The JAJM evaluation is at Exhibit C.

AFPC/DPPRS reviewed applicant's request and recommends denial.  DPPRS states that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the sound discretion of the discharge authority.  The DPPRS evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant states that the allegation that he disobeyed a no-contact order is completely false.  SrA XXX of the Security Forces interviewed MRS. XXX---- and stated "MRS. 1 does not recall ---- mentioning a no-contact order" not that he had received one.  This was collaborated by SSGT 2---- who witnessed him contacting MRS. XXX---- prior to the no-contact order.  MRS. XXX---- provided the same information to his ADC and stated in an affidavit on 8 Jul 98 prior to his board hearing and in a Declaration she wrote along with his civil suit.  All of this information as made available to his commander prior to any actions being taken against him.  He did not have sexual intercourse with MRS. XXX----.  The allegation was not only false but was never proven or established.  MRS. XXX---- denied the allegation as well.  The only evidence that was used against him for the alleged adultery allegation was the unlawfully intercepted and recorded telephone conversations, in which he was not speaking to MRS. XXX----, but to a friend.  A Federal judge has ruled in two summary judgments that the evidence used against him during the Air Force's nonjudicial actions violated Federal wiretapping statutes and was unconstitutional and that the illegally obtained evidence is clearly inadmissible in any way to include its use by the Air Force.  The judge ruled that SSGT 1---- clearly violated Federal wiretapping statutes and that the JAG also committed violations of Federal wiretapping statutes when he used, disclosed, and allowed others to disclose the contents of the recorded conversations.  SSGT 1---- admitted to the Security Forces that he knew that his actions were in fact illegal when he recorded the conversations and handed them over to them.  SSGT 2----, who after repeatedly challenging the use of the evidence that was used against him received a set aside from the wing commander.  When the set aside was granted, the applicant had already been discharged from the Air Force.  The Air Force failed to inform either himself or his counsel of this action.  Prior to his discharge, he attempted to speak to the wing commander but he received a phone call from his counsel who was informed by the JAG that the wing commander did not wish to meet with him.  

The allegation that he was derelict in the performance of his duties by failing to secure patient paperwork and straighten his workstation, was also false.  In his rebuttal he explained to his commander that one or more Primary Care physicians had stayed late and failed to properly secure patient charts.  His rebuttal included an email response from the Officer in Charge of the Primary Care Clinic, to an email from the primary care superintendent that "the late technician is not the janitor...clean up after yourselves."  After learning of his punishment an email was circulated indicating that late technicians were getting blamed for primary care providers leaving patient charts in the return chart box after close of the duty day.  This problem had obviously been occurring prior to his Article 15 and continued afterwards.

His failure to go allegation is the only allegation that is true.  He overslept because of a power failure at his residence on 9 Feb 98.  He accepts full responsibility for his actions but being late for work does not normally warrant Article 15 punishment.  Because he was late for work, he felt like his hands were tied.  That was the only reason he decided to accept Article 15 proceedings.  The Air Force states that without the Article 15 action he still would have been discharged at that time.  He admits that at times he used poor judgment due to personal problems.  He feels that some of the administrative measures used against him were not used to help him but were unfairly carried out to discriminate against him because of his overwhelming personal problems.  Without the Article 15 he would have remained on active duty and been honorably discharged at the end of his enlistment.

The Air Force knowingly violated Federal Electronic Communications Privacy Act and Washington State wiretapping statutes as well as Department of Defense (DoD) regulations and the Rules of Evidence under the MCM.  According to AFI 31-206, the Office of Special Investigations (OSI) Security Investigations Program is the sole Air Force agency authorized to conduct interceptions of communications for law enforcement purposes.  In deciding whether or not he had committed the offenses alleged during his Article 15 proceedings, his commander completely ignored the evidence that he and his counsel submitted which supported his innocence.  His commander severely abused the authority entrusted in her by the Air Force and has totally disgraced the term "Commander's Discretion" in this case.  DoD policy and the MCM clearly forbid the use of any illegally obtained evidence.  A November 1997 newsletter reminds all JAG officers of the inadmissibility of unlawful wiretapping to include its use in any court martial, nonjudicial punishment, or board of inquiry.  The fact that SSGT 1---- recorded the conversations not under any official capacity, but for personal gain to aid him in his divorce does not excuse his blatant disregard for Federal and State wiretapping statutes.  The Air Force has condoned his actions by refusing to take action against him for his unlawful behavior.  His commander wrote a Letter of Counseling for SSGT 1---- and simply ordered him to cease and desist any further unlawful recordings because it was illegal, which also proves that she knew that her own actions were illegal by use of the unlawful evidence.  She stated in an affidavit in a civil proceeding that she knowingly used and disclosed the contents of the unlawful recordings that she used against him in the Article 15 proceeding. 

In a class action civil suit filed against SSGT 1----, the Federal judge ruled that he had in fact violated Federal wiretapping statutes.  He stated that the JAG who allowed the unlawful evidence to be used against him in his Article 15 proceeding also violated Federal wiretapping statutes.  The civil suit he and four other plaintiffs filed was settled out of court for monetary damages.  If the Air Force was able to use the unlawful evidence, why did the Air Force settle for monetary damages.  

Federal and State wiretapping statutes clearly apply to all State Federal government, and military entities.  The military cannot rewrite and apply the law to fit their needs and apply as they see fit.  The statute is clear and does not leave room for interpretation by a military commander or JAG to enforce, change, or ignore the statutes in an attempt to apply it to nonjudicial punishment or other administrative proceeding and be exempt from the consequence of their actions.  This is the reason for the civil suit and the reason that the other Air Force member accused of the same adultery allegations has received a set aside.  

Regarding the Air Force position that even without the use of the tapes and disregarding the adultery allegation, the remaining allegations were sufficient to support nonjudicial punishment, the applicant states that in a sworn affidavit for federal court his commander stated that if it hadn't been for the tapes she would not have known about the applicant and that she was not considering Article 15 punishment for any other reason.    

In support of his request, applicant provided a personal statement, additional copies of documents previously submitted, witness statements, and additional documents associated with District Court proceedings.  His complete submission, with attachments, is at Exhibit F.

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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.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We find no evidence of error in this case and after thoroughly reviewing the documentation provided in support of his appeal, we do not believe he has suffered an injustice.  In cases of this nature, we are not inclined to disturb the judgments of commanding officers absent a strong showing of abuse of discretionary authority.  We have no such showing here.  The evidence of record indicates that during the processing of the Article 15 action, the applicant was afforded  every right to which he was entitled, he was represented by counsel, waived his right to demand trial by court-martial, and submitted matters for review by the imposing commander and appellate authority.  After considering the matters raised by the applicant, the commander determined that he had committed "one or more of the offenses alleged" and imposed punishment.  After consideration of the matters presented, the appellate authority suspended a portion of his punishment.  Persuasive evidence has not been provided which would lead us to believe that the imposing commander or the reviewing authority abused their discretionary authority, that his substantial rights were violated during the processing of the Article 15 punishment, or that the punishment exceeded the maximum authorized by the UCMJ.  With respect to his request that he be reinstated onto active duty, evidence has not been provided which would lead us to believe that the action taken to affect his discharge was improper or contrary to the provisions of the governing regulations at the time; or, that the decision to discharge him was based on factors other than his own documented pattern of misconduct.  Therefore, we agree with the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  In the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number 01-00662 in Executive Session on 26 Feb 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 27 Feb 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 18 Oct 01.
    Exhibit D.  Letter, AFPC/DPPRS, dated 7 Dec 01.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Dec 01.
    Exhibit F.  Letter, Applicant, dated 1 Sep 02, w/atchs.