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•J	AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD	-
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TYPE  GEN	x	I	PERSONAL  APPEARANCE	I	RECORD  REVIEW
·	:. (,:Py:NS	NAME OF COU NSEL AND OR ORGANIZATION	ADDRESS AND OR ORGANIZATION OF COUNSEL YES	No
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MEMBER  SITTING	HON	GEN	UOTHC	OTHER	DENY
x x x x
x
13	EXHIBITS SUBMITTED TO THE BOARD
l	ORDER APPOINTING THE BOARD
2	APPLICATION FOR REVIEW OF DISCHARGE
3	LETTER OF NOTI FICATION
4		BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXH IBITS SUBMITTED AT TIME OF PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DATE	CASE NUMBER

18 May 2005	FD-2005-00033
A.PPL.ICANT.'S lSSUE.AND"•. m.E,BO.AR.D'S DECISIONA. L RATION. AL ARE DISCUSSED ON TH.E ATTACHED.·A· lR FO.R.CE D.I.S.CH. ARG.E R.EV. IE.W. BO.ARD .DEC.ISIONAL RATIONALE
Case heard via video-teleconference  between St. Augustine, Florida, and Andrews AFB, Maryland. Advise applicant of the decision of the Board and the right to submit an application to the AFBCMR Names and votes will be made available to the applicant at the appl icant's request.

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TO:

INDORSEMENT	DATE: 5/2012005	 	
·----rr.:R"o - -	-------	-  ---

SAF/MRBR

SECRl:TARY OF THE AIR FORCE PERSONNEL COU NCIL AIR FORCE DISCHARGE REVIEW BOARD
550 C STREET WEST. SUITE 40	1535 COMMAND DR, EE WING, 3RD FLOOR
RANDOLPH AFB. TX 78150-4742	ANDREWS AFB, MD 20762-7002

AFHQ FORM 0-2077, JAN 00	(EF-V2)	Previous edition will be used

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AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2005-00033	

GENERAL:	The  applicant  appeals  for  upgrade  of  discharge  to  honorable,  to  change  the  reason  and authority for the discharge and to change the reenlistment code.

The applicant appeared and testified before the Discharge Review Board (DRB), without counsel, via video­ teleconference between Andrews AFB, Maryland, and St Augustine, Florida, on 18 May 2005.

The following additional exhibits were submitted at the hearing: Exhibit #5:  Florida State University Transcript
Exhibit #6:  Florida Criminal History Report
Exhibit #7: Two Tallahassee Community·· Colle  e Letters, 18 May 2004 and 2 February 2004 Exhibit #8:  Letter of Reference from Dr.
Exhibit #9:  Two Tallahassee Community	· ege	e  ers, 28 March 2003 and 19 May 2003 Exhibit # 10: Florida Air National Guard Letter, 29 November 2001
Exhibit # 1 1: Florida Air National Guard Letter, 1 1 February 2002
Exhibit # 12: Air Force Office of Special Investigations FAX, 12 September 2001 Exhibit #13:  Florida Air National Guard Letter, 28 March 2002
Exhibit #14:  FOIA/PA Response Letter, 23 August 2004
Exhibit # 15: DC2 Clearance Search Results, 18 August 2004
Exhibit # 16: Letter from Applicant, 30 November 2004, 4 pages

Following the Board, the applicant sent an additional 13 page document for the board's consideration. In order to be sure the applicant received every opportunity to present his case, the document was considered by the board members.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.

FINDINGS:	Upgrade  of  discharge  and  change  of  reason  and  authority  for  discharge  and  change  of reenlistment code are denied.

The Board  finds that  neither  the  evidence  of record  nor that  provided  by  the  applicant  substantiates  an inequity or impropriety that would justify a change of discharge.

ISSUE:

Issue 1 . The applicant contends discharge was inequitable because he did not commit the misconduct alleged.  Despite his assertion, two witnesses identified him as the offender and a witness provided a license           plate number that matched the applicant's.  His commander concluded he had committed the misconduct and initiated separation action for sexual perversion.  The DRB concluded the applicant had committed the misconduct and that the misconduct was a significant departure from conduct expected of all mil itary members.  The characterization of the discharge received by the applicant was found to be appropriate.

Issue 2.  The applicant states that his discharge did not take into account the good things he did while in the service.  The DRB took note of the applicant's duty performance as documented by his performance reports, letters of recommendation, material submitted by the applicant and his other accompl ishments.  They found the seriousness of the willful misconduct offset the positive aspects of the appl icant's duty performance.  The DRB concluded the discharge was appropriate for the reasons which were the basis for this case.	

..
Issue 3.  The applicant contends his discharge should be upgraded because of his good citizenship and post­ service activities.  The DRB was pleased to see that the applicant was doing well in college and has a plan for his future activities.  However, no inequity or impropriety in his discharge was found in the course of the hearing.  The DRB concluded the misconduct of the applicant was appropriately included in the characterization of his term of service.

Issue 4.  The applicant asserted that his right against self-incrimination under the 5th Amendment to the U.S. Constitution was violated by his commander's initiation of discharge proceedings before his civilian trial.
His assertion is legally incorrect.  He did not incriminate himself and therefore no violation occurred.

Issue 5.  The applicant alleges that he was denied an administrative discharge board, however he admitted he waived his right to a discharge board as a reserve of the Air Force and that he was not entitled to a discharge board under the relevant rules of the State of Florida Air National Guard at the time of his discharge.  He requested a single discharge board be held in his case or that his AGR status not be decided until after a reserve discharge board, but his request was not granted and there was no requirement that it be granted.

Issue 6.  The applicant alleges that he was discharged as a result of his reporting numerous problems with the maintenance and personnel practices in the Air National Guard.  However, he testified that an IG  investigation determined that no unlawful retaliation had occurred, and the DRB opines he would have been discharged for his misconduct regardless of whether he had complained about the maintenance and
personnel practices.

Issue 7.  The applicant complains that he had ineffective assistance of counsel because his military counsel had never represented an AGR member and was not located at the same installation.  Lack of prior experience in representing a particular class of individual is not automatically disqualifying.  There is no requirement that a lawyer be located at the same installation as a client.  The applicant utilized civilian counsel while retaining his military counsel and so received adequate legal advice.

Issue 8.  The applicant asserts that his commander committed an impropriety because the commander told OSI action would be taken under the UCMJ.  The commander did not do so.  There is no requirement a commander take military justice action on an allegation.  Rule for Courts-Martial 306 specifically provides for administrative resolution of allegations (including discharge) when a commander deems it appropriate.

Issue 9.  The applicant believes that because the civilian court system dismissed his case, he should not have been discharged because there was no conviction or action tantamount to a conviction in his case.
Unfortunately for the respondent, he is confusing two different grounds for discharge.  A member may be discharged for a civilian conviction or action tantamount to a conviction, but he was not discharged under that provision.  Instead, he was discharged after his commander made an administrative determination that he had engaged in sexual perversion based on two witnesses who identified him as the offender and a witness who provided a license plate number that matched the applicant's.

Issue 10. The applicant alleges an impropriety occurred because he believes Article 27, UCMJ, concerning detail of trial and defense counsel, was violated in his case.  Article 27 is applicable to courts-martial, not administrative discharge board proceedings.  He also complains that he was denied effective assistance of counsel because his military defense counsel was collocated with, and rated by, another judge advocate who the applicant claimed was advising his commander.  The Air National Guard allows assistant staff judge advocates to represent members in discharge actions, and there is no evidence that the senior judge advocate had improper involvement in the case.

Issue 11. The applicant asserts that because he was not tried for his actions in a civilian court, those actions may not be considered for the purpose of characterizi ng his service.  Had hi s case resulted in judicial

proceedings resulting in an acquittal or other action having the same effect, he would have been correct.  In his case however, the charges were merely dismissed which is not the same thing as an acquittal.  Because there was no adjudication in his case, there is nothing to prevent his commander from considering the applicant's misconduct  in determining an appropriate service characterization.

Issue 12.  The applicant claims that security regulations mandate certain notification and permission procedures be followed before a member with a high security clearance is discharged.  The regulations he mentions do not create any rights for a member in a discharge action, but are intended to protect against the disclosure of classified information.  The board was unable to discern any impropriety which acted to the prejudice of the applicant in the alleged failure of the government to proceed under such regulations.  The applicant was informed in the hearing that the video-teleconference was not a secure means for transmission of classified material and that at least one member of the board possessed only a secret clearance.  The applicant was further advised that if he wished to pursue any classified aspects of his case beyond merely alleging a government failure to receive permission from security officials to proceed in his case, he should request a special secure forum to do so.  The applicant also alleged irregularities in the revocation of his security clearance, but such matters are beyond the Discharge Review Board's purview and are not relevant to the discharge action.

Issue 13.  The applicant contends his discharge was improper because he did not receive a veteran's benefits briefing, a transition assistance briefing or a medical examination.  The board does not find that his receipt of such briefings would have changed his discharge and notes that the applicant has sought and received
medical evaluation and treatment from the Veteran's Administration.

Issue 14. The applicant maintains that his commander did not comply with the requirement that all investigations "properly and completely develop, substantiate and document all facts."  Contrary to the applicant's contention at the hearing, his commander was not obligated to wait for a civil ian adjudication before he took action on the applicant's case.  The commander received a completed AFOSI investigation prior to acting on the applicant's case.

Issue 15.  The applicant complains of numerous errors in his "paperwork and subsequent DD-214."  The board gave the applicant the benefit of the doubt and considered the case as if the applicant's records showed all of the awards he claims he was authorized but has no power to change the alleged errors in his
paperwork.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion  of the discharge authority and that the applicant was provided full  administrative due process. In view of the foregoing findings the Board further concludes that there exists no legal or equitable basis for upgrade of discharge, thus the applicant's discharge should not be changed.

Attachment: Examiner's Brief