RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  BC-2002-02347
	         INDEX CODE 145.06  134.02  108.10  110.02
	 	COUNSEL:  

	 	HEARING DESIRED:  Yes

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APPLICANT REQUESTS THAT:

All references to his resignation in lieu of (RILO) court-martial be deleted, he be reinstated on active duty to his former position in the Reserves with back pay and allowances, and he receive medical separation pay in accordance with the recommendation from the 26 May 99 Informal Physical Evaluation Board (IPEB). 
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APPLICANT CONTENDS THAT:

He was involuntarily and unlawfully separated from the Air Force on 22 Jul 99 because his resignation was the result of erroneous legal advice from his military counsel and the Air Force unfairly failed to act on his request to withdraw his resignation that was filed well before the effective date of his resignation. 

He denied allegations of inappropriate conduct with patients and staff in the dental clinic, but his military counsel pressured him to submit a RILO because, unlike a court-martial, it would not result in a federal conviction that would prevent him from practicing dentistry. At the same time, he was undergoing treatment for central serous retinopathy (CSR) in his left eye, severe depression, and anxiety. His military counsel erroneously advised him that he would be entitled to a medical discharge with separation and benefits if a Medical Evaluation Board (MEB) found him unfit for duty because a medical discharge would take priority over his resignation. In fact, the likely consequences of his resignation request were quite the opposite. The medical separation and disability benefits were the primary reasons he submitted his RILO.  Had he been properly advised from the outset, he would not have submitted a resignation or waived his rights to a contested court-martial or administrative hearing. Nearly six weeks before the effective date of his resignation, he attempted to withdraw his resignation. However, he was discharged and it was not until four days later that the Air Force responded to his withdrawal request. The Air Force abused its discretion by failing to act on his withdrawal request before his resignation became effective despite having ample opportunity to do so.

The applicant’s complete submission, with counsel’s 20-page brief and other attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The following information was extracted from the applicant’s military personnel and medical records, the Air Force Office of Special Investigation (AFOSI) and the Article 32 Reports of Investigation (ROIs), and the Secretary of the Air Force Personnel Council (SAFPC) case file. 

The applicant enlisted in the US Army Reserves and served with the 448th Engineering Battalion from 1968 to 1974. After earning his undergraduate and dental degrees, he served in the Army Dental Corps from 1982 to 1985, the Army Reserves from 1985 to 1992, and the Air Force since 16 Dec 92. He entered active duty in the grade of lieutenant colonel (LTC) on 1 Dec 96 and was assigned as a dentist to the 49th Aeromedical-Dental Squadron (49 ADS), at Holloman AFB, NM.

According to testimony from the former squadron commander, rumors of sexual harassment in the unit surfaced three months after the applicant arrived.  After speaking to three airmen and the applicant, the former commander concluded there was no overt problem with sexual harassment or a hostile work place environment, so he verbally counseled the applicant regarding his inappropriate comments.

After the commander left in Jun 98, an AFOSI inquiry was initiated on 15 Jul 98 following a command-directed investigation which surfaced allegations the applicant had maltreated a female senior airman (SRA) dental assistant from 1 Dec 96 to 30 Jun 98 by making sexual remarks to and about her, touching her and exposing himself to her, and that he made several inappropriate remarks to two other female airmen dental assistants as well as two female airmen dental patients. Following rights advisement, the applicant requested legal counsel and the interview was terminated. 

As a result of evidence cited in the AFOSI ROI, the applicant’s privileges were suspended and he was removed from patient care on 2 Nov 98.

An Article 32 investigation officer (IO) was appointed on 2 Dec 98 to investigate charges preferred against the applicant consisting of two specifications of indecent assault, one specification of indecent exposure, one specification of 
maltreatment and four specifications of conduct unbecoming an officer and gentleman. Details regarding the charges and specifications are contained in the ROI, which was completed on 8 Dec 98.

Based on the findings and recommendations of the Article 32 ROI and the wing commander, amended charges related to the applicant’s alleged inappropriate behavior towards three female airmen dental assistants and two female airmen patients were referred for trial by a general court-martial (GCM) on 29 Dec 98. 

The applicant responded by submitting a RILO on 27 Jan 99. He indicated his understanding that if the SAF accepted his resignation, he would receive an under other than honorable conductions (UOTHC) discharge, unless the SAF determined he should receive a general or honorable discharge.

On 13 Apr 99, SAFPC recommended that the applicant’s RILO be accepted but that his discharge be characterized as general.  SAFPC based their upgraded discharge recommendation on their doubts about the credibility of the victim of the most serious offenses. 

On 10 May 99, an MEB convened. According to the 10 May 99 Summary, the applicant was originally diagnosed with CSR in 1997 after he developed a distortion and “black shade” in his left eye. Visual acuity at that time was 20/25 and he underwent no treatment except follow-up. He had a recurrent episode in Aug 98 when his vision decreased to 20/200, but did not necessitate laser treatment intervention. The applicant complained he was unable to work effectively since that time due to extremely poor vision in the left eye. The retinal specialist concluded that the level of visual dysfunction of which the applicant complained at the time was not consistent with the ophthalmic findings. The summary noted that the inability to elicit accurate responses from the applicant which are physiologic and consistent with the objective ocular exam made it extremely difficult to detect the actual level of dysfunction.  The case was referred to a PEB.

On 12 May 99, the SAF accepted the applicant’s RILO and directed his separation with a UOTHC discharge. However, the discharge was held in abeyance pending the outcome of the ongoing medical evaluation process regarding the applicant’s eye condition.

On 26 May 99, the IPEB recommended the applicant’s medical discharge with severance pay for CSR in the left eye. The IPEB noted that the minimum compensable rating for this disorder is 10% when there is 20/40 vision in one eye and 20/200 in the other eye. Since the applicant had 20/20 vision in one eye and 20/200 
in the other eye, the IPEB found the applicant unfit but recommended a disability rating of 0%.  The applicant originally nonconcurred on 27 May 99 and demanded a Formal PEB (FPEB). 

On 14 Jun 99, the applicant submitted a request to the SAF to rescind his resignation. He indicated he wanted to complete the PEB process and pursue medical retirement since the seriousness of his condition would prevent his practicing dentistry. In the alternative, he requested rescission so he could face court-martial and prove his innocence since he would be unable to practice dentistry in the civilian sector. 

On 18 Jun 99, he waived his request for an FPEB and concurred with the findings of the IPEB.

The Officer Performance Report (OPR) for the period 31 May 98 through 30 May 99 had been referred to the applicant on 2 Jun 99. The flight commander (rater) had marked the applicant “Met Standards” in all performance categories. The squadron commander (additional rater) indicated the applicant did not meet standards in Professional Qualities. In his 14 Jun 99 rebuttal, the applicant indicated that the SAF had accepted his RILO on 12 May 99 and he had, by separate correspondence, requested that the SAF rescind his RILO to allow him to fight the charges that had been brought against him. However, after discovering some administrative errors, the OPR was corrected and again referred to the applicant on 21 Jun 99. Despite requesting and being granted an extension of time until 7 Jul 99 in which to rebut, the applicant did not provide additional comments. The wing commander (reviewer) referred the OPR to the applicant on 22 Jul 99. After considering the applicant’s 14 Jun 99 comments, the reviewer indicated the applicant did not meet standards in Leadership Skills, Professional Qualities and Judgment and Decisions.  On 7 Aug 99, the 12th Air Force (12 AF) commander concurred with the reviewer’s evaluation.

SAFPC found the seriousness of the applicant’s alleged misconduct outweighed the gravity of his medical condition and, after unanimously finding his medical condition did not contribute to or aggravate his propensity to engage in misconduct, recommended continuation with the RILO processing. Therefore, on 14 Jul 99, the SAF, acting through SAFPC, directed the applicant’s discharge, thereby terminating the applicant’s dual-action case. 

The applicant was discharged on 22 Jul 99 in the grade of LTC with a UOTHC characterization, triable by court-martial. He had 6 years, 7 months and 36 days of total active service and 16 years, 6 months and 19 days of prior inactive service.

HQ AFPC/DPPR’s letter dated 26 Jul 99 advised the applicant that, prior to finalizing his discharge, HQ AFPC/DPPD had informed them of the applicant’s pending PEB and his involuntary discharge was held in abeyance until his PEB was completed. Once completed, both his PEB and RILO packages were sent to the SAF for a final determination. On 14 Jul 99, the SAF directed his discharge, thereby terminating any further disability processing actions. DPPR also indicated that, since the SAF had accepted his resignation, there was no provision to rescind this decision to allow him to face a court-martial.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRS states that, based on the documentation in the file, they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation. The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing. Denial is recommended.

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPD notes that individuals undergoing disability processing who also have simultaneous ongoing administrative/punitive discharge actions pending are forwarded to SAFPC for final determination as to which case they want to pursue. This is referred to as a dual-action case.  In this situation, both cases were forwarded to SAFPC on 30 Jun 99 for their decision. On 14 Jul 99, the SAF directed the applicant’s discharge and the ongoing disability action was terminated. DPPD concludes the applicant was treated fairly, was properly rated and afforded a full and fair hearing. Based on the SAFPC decision on 14 Jul 99, they find no grounds to overturn the Secretarial decision and award the applicant a disability discharge with entitlement to severance pay. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

HQ AFPC/JA notes that had the applicant proceeded to trial, he risked not only receiving a dismissal and confinement, but also his ability to practice dentistry as a civilian and he risked losing a medical separation. His RILO clearly showed he was worried that a conviction would prohibit him from practicing dentistry back in Puerto Rico.  Second, the RILO was based on his counsel’s concession that the applicant would be found guilty of at least one of the misconduct allegations. Third, the applicant knew that submitting a RILO allowed his medical disability case to continue. Now, he is essentially arguing that had he been told that a medical discharge was not a foregone conclusion and that SAFPC would make the final determination as to which discharge would be executed, he would not have submitted a resignation. In short, he has failed to prove that erroneous legal advice caused 
him to submit his resignation or that it was anything but a knowing and voluntary act. The evidence clearly shows that counsel’s advice to submit the resignation was soundly based on the applicant’s desire to save his civilian practice and continue to be processed in the medical evaluation system. The applicant was not erroneously induced to submit his resignation. As for his request to withdraw his RILO, his resignation had already been approved and was being held in abeyance pending the outcome of the medical evaluation process. He was not, in fact, asking for a withdrawal but that the already approved resignation be rescinded. The governing directive makes no provision for the rescinding of approved resignations, only the withdrawal of pending resignations. Finally, his reasons for requesting a rescission of the resignation were counter to his best interests. Rescinding the RILO to face the misconduct charges at a court-martial would have ended the processing of his disability case. Those charged with or convicted and sentenced for one or more offenses that could result in dismissal or punitive discharge may not undergo disability evaluation. Paradoxically, if his resignation could have been rescinded, the applicant faced all of the events he wanted to avoid by submitting the RILO in the first place. Denial is recommended.

A complete copy of the evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations were forwarded to the applicant’s counsel on 18 Oct 02 for review and comment within 30 days.  On 9 Dec 02, counsel requested that the case be temporarily withdrawn until he was ready to proceed.  The applicant’s case was reopened upon receipt of counsel’s 23 Dec 02 rebuttal. 

Counsel contends that settled law provides that administrative agencies have inherent authority to reconsider their own decisions since the power to decide in the first instance carries with it the power to reconsider. Neither the SAF nor his designee acted on the withdrawal request during the six weeks before the effective date of his resignation. Counsel cites Cunningham v. US, which flatly rejects the Air Force’s what’s-done-is-done argument, as well as Trujillo v. General Electric Co. If a withdrawal request submitted before the effective separation date is denied without any demonstrable exercise of discretion, it is an involuntary separation. The advisory opinion’s suggestion that the approval of the resignation request was simply being held in “abeyance” is completely illogical and inconsistent with the dual processing regulation.  If that were the case, the premature 
approval would operate as an improper predetermination and would render the dual processing requirement meaningless.  In fact, the Air Force conceded that its initial approval of the resignation was ineffectual because the “disability case and administrative discharge” were not forwarded to the SAF for a “final determination” until 30 Jun 99. The advisory opinion’s quibble over the applicant’s “request to rescind” rather than a “request to withdraw” is a preposterous, hyper-technical argument--the words are synonymous. The meaning and effect of such a request is patently the same and the SAF had the authority to approve it. Moreover, the Air Force completely ignored the fact that from Aug 98 until May 99 the applicant was being treated on a daily basis by an Air Force psychiatrist for severe depression and anxiety. He was taking prescription medication for his depression, anxiety and a sleeping disorder, which bears directly on the issue of “voluntariness.”

A complete copy of counsel’s response is at Exhibit I.

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ADDITIONAL AIR FORCE EVALUATION:

HQ USAF/JAG advises that SAFPC makes the final disposition in dual-action (disability/administrative) processing.  If SAFPC does not accept a member’s retirement or discharge in lieu of court-martial action, the court-martial will proceed.  If the sentence does not result in punitive discharge, then the disability case can be processed. Administrative action continues in any disability case that results in a fit determination. HQ USAF/JAG notes that, faced with a high probability of conviction on all or some of the charges, the applicant, upon advice of counsel, elected to submit his resignation.  Independent of the PEB process, if his resignation was accepted by the SAF (which it was), the applicant reaped several benefits; i.e., the avoidance of the rigors of a criminal trial, federal conviction, potential confinement, dismissal and, more importantly, any negative impact on his dentistry license and practice. Conversely, by accepting the applicant’s resignation, the Air Force was denied the opportunity to prosecute the applicant and, over time, the ability to marshal evidence and witnesses. JAG urges the Board not to blindly accept the applicant’s assertion as uncontroverted truth that his resignation was based on erroneous legal advice of two highly experienced military counsels that a UOTHC discharge would not be executed unless the PEB process ultimately found him fit for duty. Nowhere in the applicant’s rescission (not withdrawal) memo of his SAF-accepted resignation does he state his military counsel gave him “bad advice.”  His rescission was based on the assertion that “new information regarding my ophthalmic condition has been discovered which substantially change my status regarding the resignation.”  The applicant claims he learned for the first time that the advice of his military counsel concerning medical discharge and disability benefits was erroneous and misleading when he retained civilian counsel on 12 May 99. If he retained civilian counsel at that point, why didn’t that counsel ensure military counsel’s “erroneous and misleading” advice was included as the primary reason or basis for his resignation rescission request?  He has not provided affidavits from either of his military counsel attesting to the “erroneous and misleading” advice they gave him concerning dual processing. This should be particularly persuasive to the Board because one of the applicant’s counsels is still in the Air Force assigned to Bolling AFB.  The burden of proof resides with the applicant and he has offered no credible, let alone sufficient, evidence.  Consequently, his accepted resignation is presumed voluntary and further analysis and comment of applicant’s legal authority concerning this assertion is unnecessary.

The applicant’s other assertion is no official action was ever taken on his attempted rescission six weeks before its effective date. Again, factually, his rescission request was predicated on a desire to “complete the PEB process” and “the opportunity to pursue the medical retirement that I believe I am entitled to.” At the time of his attempted rescission, he had met the IPEB and then demanded an FPEB hearing. Regardless of the SAF’s action on the applicant’s rescission request, the PEB process would have been followed to completion. In other words, from the SAF and SAFPC perspective, no official action (approval/disapproval) of the applicant’s rescission request was required or necessary to grant his request to “complete the PEB process.”  Once completed, the SAF, acting through SAFPC, considered all the information before it and elected to execute the applicant’s tendered and accepted resignation.  

In order for the law cited in counsel’s rebuttal to be applicable, the Board must accept the facts, as represented by the applicant, as the uncontroverted truth. The objective facts don’t support the applicant’s assertions.  The applicant and his counsel have inaccurately portrayed the facts to the Board and the cited case law has no application. Since the applicant has failed to demonstrate error or injustice, denial is recommended.

A complete copy of the additional evaluation is at Exhibit J.

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APPLICANT’S REVIEW OF ADDITIONAL EVALUATION:

Counsel asserts the advisory opinion fails to respond to the principal points made in their submission and instead repeats the same flawed arguments. The applicant met his burden that he relied on erroneous advice from his ADC; the Air Force did not meet its burden of persuasion.  His eye condition is not “pre-Air Force” but in fact occurred during his Air Force service. The Air Force’s attempt to distinguish Cunningham v. US rests entirely on its claim that there is a meaningful difference between a request to withdraw and a request to rescind a resignation. Their argument is without merit. The words rescind and withdraw are synonymous or interchangeable. The advisory opinion, not surprisingly, made no effort to define either term. As stated earlier, the Secretary and administrative agencies have inherent authority to reconsider their own decisions since the power to decide in the first instance carries with it the power to reconsider. Even if the SAF approved the resignation request, there is no question that he had ample time and inherent authority to approve the applicant’s request to rescind his resignation before its effective date. The Air Force’s argument is a pure post hoc rationalization for an improper agency action. The fact that the applicant was being treated on a daily basis for severe depression and anxiety at the time he submitted his resignation request bears directly on the issue of voluntariness. 

A complete copy of counsel’s response is at Exhibit L.

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.	Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. We carefully considered counsel’s arguments as well as the available evidence of record. The applicant’s stated reason for rescinding his RILO was so he could complete the PEB process or, in the alternative, be allowed to prove his innocence because he had discovered his ophthalmic condition affected his ability to practice dentistry. Nowhere in the 14 Jun 99 rescission request did he or his civilian counsel assert, as they do now, that the RILO was submitted as a result of erroneous, ineffective military legal advice. Completing disability evaluation was the applicant’s stated objective and his RILO facilitated the continuation of the PEB process. Without it, he first would have had to submit to the rigors of trial and the very real possibility of a dismissal or punitive discharge, in which case he could not undergo disability evaluation. Ironically, if the applicant’s rescission request had been granted he would have faced all the events he wanted to avoid by submitting the RILO in the first place. He could have requested withdrawal of his RILO while it was pending the SAF’s prerogative to accept or reject it. This he did not do, and once the SAF accepted the RILO, it was no longer pending but held in abeyance so that the PEB process could be completed, which is what the applicant claimed he wanted. After the PEB process was finalized and the applicant found unfit, SAFPC reviewed the accepted RILO, the completed PEB evaluation, the applicant’s concurrence with the IPEB’s recommendation and the rescission request. SAFPC considered the dual aspects of the case, i.e., whether to discharge the applicant medically for unfitness or discharge him administratively for his misconduct. SAFPC apparently concluded the applicant’s medical condition did not contribute to or mitigate his misconduct. As a result, the SAF, acting through SAFPC, directed the applicant’s UOTHC discharge based upon the SAF’s previous acceptance of the RILO. With regard to the rescission request, the Board notes there is no regulatory provision for rescinding an accepted RILO. The Board also notes that the cases cited by applicant deal with resignations by civilian employees.  The law governing resignation by military officers is significantly different from that applying to civilians. The applicant’s situation undoubtedly placed him under severe stress, but that would not inherently impair his decision-making capability. Further, counsel has not demonstrated that his client’s decision to request discharge in lieu of court-martial was uninformed or involuntary, or that the SAF, acting through SAFPC, abused or exceeded his authority in ordering the execution of the resignation despite the applicant’s request to rescind. With the applicant’s accepted RILO, the Air Force was denied the opportunity to prosecute him and we find no grounds for allowing the applicant to litigate at this later date those issues he neatly avoided with his resignation.  In the final analysis, we see no compelling evidence presented that the applicant suffered either an error or injustice and agree with the rationale provided by the two legal advisory opinions that this appeal should be denied.

4.	Since the applicant’s case is adequately documented and a personal appearance with or without counsel will not materially add to our understanding of the issue involved, his request for a hearing is not favorably considered.

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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 this application in Executive Session on 1 May 2003 under the provisions of AFI 36-2603:

The following documentary evidence relating to AFBCMR Docket Number BC-2002-02347 was considered:

   Exhibit A.  DD Form 149, dated 22 Jul 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 5 Sep 02.
   Exhibit D.  Letter, HQ AFPC/DPPD, dated 27 Sep 02.
   Exhibit E.  Letter, HQ AFPC/JA, dated 10 Oct 02.
   Exhibit F.  Letter, SAF/MRBR, dated 18 Oct 02.
   Exhibit G.  Letter, Counsel, 9 Dec 02.
   Exhibit H.  Letter, AFBCMR, dated 16 Dec 02.
   Exhibit I.  Letter, Counsel, dated 23 Dec 02.
   Exhibit J.  Letter, HQ USAF/JAG, dated 7 Mar 03.
   Exhibit K.  Letter, AFBCMR, dated 12 Mar 03.
   Exhibit L.  Letter, Counsel, dated 12 Apr 03.