RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

IN THE MATTER OF:	DOCKET NUMBERS:  02-02582
	   INDEX CODE 110.03  136.00  126.02
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His 2000 under-other-than-honorable-conditions discharge (UOTHC) be reconsidered and upgraded under lengthy service probation consideration and he be allowed to retire.

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APPLICANT CONTENDS THAT:

The USAF Academy (USAFA) leadership put him in a mental institution, wrongfully incarcerated him in a civilian jail unnecessarily for over a month, had him sign paperwork under duress giving up any and all Air Force benefits in lieu of a court-martial, imposed extreme punishment in his discharge instead of going through the proper channels and misused the spirit of the law. The source of his troubles began in 1995 when then Lt Col B, the inspector general (IG), expressed displeasure with the way he conducted a base-wide exercise. He told Lt Col B to speak to his supervisor since the officer was not in his chain of command. The beginning of the end of his career came five years later when the officer was made wing commander. The computer incident, which drove the Article 15, was done by someone else using his login name. He was punished despite overwhelming evidence proving his innocence. He assuaged his depression with a one-time near fatal drinking spree and was first placed in a mental institution because he was thought to be suicidal and then incarcerated because he was thought to be a threat. While he was in pre-trial confinement, his area defense counsel (ADC) convinced him that he faced a court-martial conviction with at least 10 years in prison and his best recourse to get out and stay out of jail was to opt for Chapter 4. His ADC misrepresented him and did not give sound legal advice. The controlled substance materials and simulated explosives found 200 meters in a common area behind his house were never proven to be his. His urinalysis was negative and the alleged offenses were never investigated. His commander disregarded medical findings and recommendations as well as other evidence in an effort to end his career.

In support, he provides a personal statement and statements from others, many character/reference letters, letters of appreciation, certificates, performance feedback worksheets and reports, newspaper clippings, and other official documents. Also provided is a statement from an individual who asserts he was the one who posted the pictures on the web site using the applicant’s log-on. The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The following information was extracted from official documents provided by the applicant, his military personnel/medical records, and the 21 Dec 00 Report of Investigation (ROI) by the Air Force Office of Special Investigations (AFOSI).

The applicant enlisted in the Regular Air Force on 18 Mar 82 and was ultimately promoted to the grade of master sergeant (MSgt) with a date of rank (DOR) of 1 May 96. During the period in question, he was the superintendent of the base exercise evaluation team assigned to the 10th Air Base Wing (10ABW) at the USAFA in Colorado. In this capacity, he wrote hostage negotiation scenarios and attended advanced training on hostage situations and negotiations.

His performance reports from 18 Mar 82 through 15 Jun 89 came under the previous evaluation system and all have the highest overall rating of “9.”  The EPRs under the current system reflect the following: 

		CLOSING PERIOD		OVERALL EVALUATION

		 7 Dec 90					5
		 8 Jun 92					4
		 8 Jun 93					5
		 8 Jun 94					5
		19 Jul 95					5
		31 Jan 96					5
		10 Jan 97					5
		10 Jan 98					5
		10 Jan 99					5
		10 Jan 00					4
		 7 Nov 00					2 (Referral)

According to the AFOSI’s investigation (discussed below) and information they received from the 10ABW commander, the applicant was involved in an incident in the summer of 1999 at the Fitness Center softball fields. His behavior apparently was inappropriate and he was suspended from some intramural activities. A Services “Judicial Committee” placed him on “probation” for one year concerning intramural activities. In Oct 99, Security Forces (SF) investigated the applicant for transmitting pornography over a government computer.  The investigation proved the allegation and command offered him nonjudicial punishment in the form of reduction to technical sergeant.  In Dec 00, the applicant was still appealing this punishment and requested a Letter of Reprimand (LOR) in lieu of the Article 15. The applicant’s appeal was successful and he received an LOR and was not reduced in grade.  These documents are not contained in the available records.

On 31 Jul 00, applicant was notified of the 10ABW commander's intent to impose nonjudicial punishment upon him for using sexual or inappropriate language to four individuals, including an opposing team player, during various sporting events between, on or about 8 Jul 00 and 12 Jul 00. On 3 Aug 00, after consulting with counsel, applicant waived his right to a trial by court-martial, requested a personal appearance and submitted a written presentation. On 4 Aug 00, he was found guilty by the commander who imposed the punishment of forfeiture of $500.00 in pay per month for two months and a reduction to technical sergeant (TSgt) suspended until 3 Feb 01. The applicant appealed the punishment; however, the appeal was denied on 15 Sep 00.  The Article 15 was filed in his Unfavorable Information File (UIF) and his selection record. Also, the Services “Judicial Committee” apparently met again and expelled him from USAFA varsity sports and intramural activities.

On 7 Nov 00, the 10ABW commander vacated the suspended reduction because the applicant willfully failed to restrict his use of the government computer system to official use only between, on or about 1 Oct 00 and 24 Oct 00. The applicant allegedly pasted photos of an active duty member onto photos depicting homosexual activities and posted them on a computerized public message board. The applicant made a personal appearance and written presentation; however, he was reduced to TSgt with a DOR of 4 Aug 00.

Later on 7 Nov 00, the 10ABW commander notified the AFOSI detachment commander that the applicant, a single parent, was locked in his on-base residence and acting strangely, that he had contacted his 1st Sergeant and asked him to “make sure the kids don’t come home tonight.” The 1st Sergeant told the SF he believed the applicant was unstable/suicidal. When an SF patrol responded to the applicant’s quarters, he was dressed in full battle dress uniform, had darkened his face completely with camouflage paint, yelled obscenities and ran inside. He also appeared to be dragging a CPR mannequin around. SF patrol called for back up, secured a perimeter, and waited for further SF response. The applicant appeared to be intoxicated and/or highly agitated. The AFOSI detachment commander knew the applicant well and went on scene to try to establish contact with the applicant. The applicant exited his residence and surrendered to SF personnel after several hours of negotiations between himself and the AFOSI detachment commander. When asked, he gave the AFOSI detachment commander permission to enter the residence and search for weapons. A search of the applicant’s home and surrounding wooded area several hundred meters behind his house disclosed the following: four green smoke grenades; one US Navy signal, smoke and illumination mark; one 50ml bottle of an anabolic steroid; a box of 88 hypodermic syringes; and one empty bottle labeled “Sterile Empty Vial.” There was an almost empty bottle of whiskey on the kitchen counter. SF troops transported the applicant to Ft. Carson Army Hospital for psychiatric evaluation. SF personnel stated he made threats in the car and in the emergency room. Subsequent investigation revealed the applicant was not armed during this incident and drugs were not in play. A blood alcohol test taken four hours after the incident indicated a blood alcohol level more than twice the legal limit for driving a vehicle. He spent three days at the Cedar Springs Inpatient Facility for psychological evaluation. He was then placed in pretrial confinement in the El Paso County Criminal Justice Center.

Based on a legal review by the 10ABW Judge Advocate (JA), dated 6 Dec 00, the following charges were preferred to the applicant on 21 Nov 00: breach of the peace (participated in an act of a violent or turbulent nature); simple assault (attempted to do bodily harm to at least two security forces members); drunkenness, disorderly conduct; communicating a threat (to security forces members); disrespectful language toward a chief master sergeant; wrongful use and possession of anabolic steroids, a controlled substance; and larceny (four smoke grenades, one signal smoke and illumination mark explosives).  [Examiner’s Note: The actual charge sheet is not in the applicant’s records -- see legal review information below.]

On 4 Dec 00, after consulting with counsel, the applicant requested discharge in lieu of court-martial under AFI 36-3208, Chapter 4, and waived his right to request lengthy service probation consideration by the Office of the Secretary of the Air Force under Chapter 6. He indicated he understood that he could be separated with a UOTHC discharge and was aware of the adverse nature of such a discharge and the possible consequences. The ADC provided a supporting statement outlining mitigating circumstances and recommending the applicant’s request be granted. 

On 6 Dec 00, the EPR for the period 11 Jan 00 through 7 Nov 00 was referred to the applicant. It indicated failure to meet minimum standards and unacceptable on/of duty conduct, an overall rating of “2” and remarks that several times during the reporting period the applicant publicly made sexually inappropriate comments, for which he was issued a Letter of Reprimand (LOR) for the first incidents and an Article 15 for the subsequent instances. The additional rater concurred with the rater and indicated the applicant elected not to provide a rebuttal. 

On 6 and 8 Dec 00, legal reviews recommended that the applicant’s request for discharge in lieu of court-martial with a UOTHC characterization be approved.  It should be noted that there are inconsistencies in the charges presented in the legal reviews. Again, as stated above, the actual charge sheet is not in the applicant’s records.  The 6 Dec 00 review from 10ABW/JA presented the charges discussed in the paragraphs above. The 8 Dec 00 legal review by the USAFA/JA to the USAFA superintendent contained the following charges:  dereliction of duty by failing to restrict use of the government computer to official use only; pasting photos of an active duty member over photos of homosexual acts and posting them on a computerized public message board; charging at two individuals and shouting obscenities; being disrespectful by lunging and shouting obscenities at a chief master sergeant; communicating indecent language and threats; wrongful possession and use of anabolic steroids; wrongful possession of drug paraphernalia; and larceny of smoke grenades and explosives.

On 11 Dec 00, the USAFA Superintendent granted the applicant’s request for discharge and directed separation with a UOTHC characterization. 

On 14 Dec 00, the applicant was separated in the grade of technical sergeant with a UOTHC discharge. He had 18 years, 7 months and 23 days of active service.

On 18 Dec 00, before the AFOSI completed their investigation and obtained laboratory analysis of evidentiary items by the US Army Criminal Investigations Laboratory, the 10ABW Judge Advocate (JA) advised them that the applicant had requested and received a discharge in lieu of court martial and that no further investigative efforts were necessary.

A letter in the applicant’s records from the 10th Medical Group, USAFA, dated 25 Jun 01, advises that the drug urinalysis test administered on 13 Nov 00 reported negative for steroids on 21 Feb 01.

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AIR FORCE EVALUATION:

HQ AFPC/JA states the applicant is requesting the Board undo what he did to himself: after finding himself facing serious court-martial charges, he knowingly and voluntarily requested an administrative discharge and waived his lengthy service rights. [Examiner’s Note:  The charges cited in this advisory reflect those indicated in the 8 Dec 00, rather than the 6 Dec 00, legal review -- See Statement of Facts.] This was in exchange for avoiding the risk of federal conviction, jail time and a punitive discharge. They discuss and counter the applicant’s contentions of unlawful command influence, pressure to request discharge, ineffective assistance of counsel and insufficient evidence. They conclude the applicant has not met his burden of proving an error injustice in his case. He requested a discharge in lieu of court-martial. When that request was approved, he received a substantial benefit. He now questions the validity of that agreement but presents no evidence to support his claims. Denial is recommended. 

A complete copy of the evaluation is at Exhibit C.

HQ AFPC/DPPRS believes the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority. Denial is recommended.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant points out that at the sporting event incident, for which he received nonjudicial punishment on 4 Aug 00, the accuser threatened him with a gun.  He can’t prove Col B had a grudge towards him because everyone fears retaliation. As for the computer, he provided evidence that it could not have been done from his computer and the action was done by someone else. He questions the charges cited in the HQ AFPC/JA advisory, indicating they are different from the ones presented to him [See Statement of Facts]. He questions how he can be charged with steroid use when the test was negative and steroids stay in one’s system for at least one month. He believes an incident can’t be referred to in an EPR if it was outside that reporting period.  His ADC told him that he would not be able to beat the breach of peace charge and he was scared out of his options by the 10-year sentence he would receive. The pretrial confinement officer was also prejudiced against him for an earlier softball game incident.  He made a mistake getting drunk in his dwelling but the punishment did not fit the crime. Col B misused his authority and influence and all those involved in the administrative actions fell under his direct supervision. He wants his stellar 18+ years considered with some benefits awarded to him.

A complete copy of applicant’s response, with attachments, is at Exhibit E.

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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 demonstrating the existence of error or injustice to warrant upgrading the applicant’s discharge to general and retiring him in the grade of MSgt. In reaching this conclusion, we attempted to achieve a more equitable resolution to a troubling case.

4.	In their evaluation, HQ AFPC/JA asserts the applicant cannot use his tender of Chapter 4 to halt the court-martial process established by laws as the proper means to adjudicate the allegations against him and then attempt to litigate those same charges, knowing the prosecution is now unable to respond. With regard to the applicant’s evidentiary contentions, we agree. The applicant appears to have had a history of volatility and inappropriate behavior in charged situations. Although there is a possibility he may not have personally posted pornographic material on a computerized message board, he was clearly irresponsible in facilitating an unauthorized person’s misuse of a government computer. His poor judgment supported the vacation of the suspended reduction and he has provided no compelling basis to warrant its voidance. We can understand his frustration and financial concerns when his suspended reduction was vacated; however, his consumption of nearly a bottle of whisky and his subsequent belligerence and aggression towards others cannot be excused. He should bear responsibility and be disciplined for his episodes of misconduct. However, we fear a rush to judgment may have resulted in an unduly severe punishment. 

5.	According to the Chapter 4 paperwork, the applicant’s ADC advised him that discussions with the legal office, the first sergeant and the squadron commander stipulated the acceptance of the Chapter 4 discharge request was contingent in part on the applicant waiving his right to lengthy service probation consideration. In less than 30 days after the 7 Nov 00 drinking episode, the applicant requested discharge in lieu of court-martial and waived his right to lengthy service probation. Ten days later and before the AFOSI even completed their evidentiary investigation, he was discharged. We can well imagine the Academy’s understandable embarrassment over a perceived “hothead” whose misconduct became particularly conspicuous on 7 Nov 00. We do not believe he was coerced into his decision, but we suspect the Academy’s desire to conclude the situation as quickly as possible and the applicant’s fear of a court-martial conviction may have prevented him from fully considering his options. Although the applicant has not presented persuasive evidence to warrant absolution, we should not disregard the fact that his evaluation reports reflect he performed his duty with distinction during most of his more than 18 years of service. Further, he appears to have served satisfactorily in the grade of MSgt from 1996 to 1999, when his problems began. Taken in context over more than 18 years of service and given the hasty disposition of the applicant’s discharge, we believe the permanent loss of the grade of MSgt, a UOTHC discharge and forfeiture of retirement benefits constitute an unduly severe lifelong penalty. We therefore recommend that his records be corrected to reflect he continued on active duty until eligible for lengthy service retirement and that he was promoted to the grade of MSgt the day before his discharge. However, in view of the totality of the circumstances, we believe his service should be characterized as general. Further, Item 12.a. on his DD Form 214 should reflect “1982” rather than “1992.”

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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 not discharged under other than honorable conditions on 14 December 2000 but on that date he continued on active duty. 

	b.  On 30 May 2002, he was promoted to the grade of master sergeant.

	c.  On 31 May 2002, he was discharged under honorable conditions and retired effective 1 Jun 2002 for length of service in the grade of master sergeant.

	d.  Item 12.a. on his DD Form 214 be corrected to reflect “1982” rather than “1992.”
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The following members of the Board considered this application in Executive Session on 6 Mar 03 under the provisions of AFI 36-2603:

All members voted to correct the records, as recommended.  The following documentary evidence relating to AFBCMR Docket Number 02-02582 was considered:

   Exhibit A.  DD Form 149, dated 3 Aug 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/JA, dated 7 Nov 02.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 13 Nov 02.
   Exhibit E.  Letter, SAF/MRBR, dated 22 Nov 02.
   Exhibit F.  Letter, Applicant, dated 21 Dec 02, w/atchs

                                   

AFBCMR 02-02582

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          , be corrected to show that:

	     a.  He was not discharged under other than honorable conditions on 14 December 2000 but on that date he continued on active duty. 

	     b.  On 30 May 2002, he was promoted to the grade of master sergeant.

	     c.  On 31 May 2002, he was discharged under honorable conditions and retired effective 1 Jun 2002 for length of service in the grade of master sergeant.

	     d.  Item 12.a. on his DD Form 214 be corrected to reflect “1982” rather than “1992.”