AIR FORCE DISCHARGE  REVIEW BOARD HEARING  RECORD
NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL)	GRADE	AFSN/SSAN

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TYPE  UOTH   x	I	PERSONAL  APPEARANCE	I	RECORD  REVIEW
COUNSEL	NAME OF COUNSEL AND OR ORGANIZATION	ADDRESS AND OR ORGANIZATION OF COUNSEL YES	No
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VOTE OF THE BOARD
MEMBER SITTING	HON	GEN	UOTHC	OTHER	DENY
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APPOINTING THE BOARD

ISSUES	A92.21	INDEX NUMBER	A60.00	EXHIBITS  SUBMITfED  TO THE  BOARD
A92. 19	1	ORDER	 	
A02.19	2	APPLICATION FOR REVIEW OF DISCHARGE
A02.25	3	LETTER OF NOTIFICATION
A93.21	4	BRIEF OF PERSONNEL FILE
COUNSEL'S RELEASE TO THE BOARD ADDITIONAL EXHIBITS SUBMITTED AT TIME OF
5	PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPEARANCE

HEARING DATE	CASE NUMBER

11 May 2006	FD-2006-00009
APPLICANT'S ISSUE AND THE llOAlID'S PECISIONAL RATIONAL Aile PISCUSSED ON TilE ATTACIW AIR FORCE PISCHARGE REVIEW l'IOARP DECISIONAL RATIONALE

Case heard at Washington, D.C.

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 applicant's request.

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'------------ =-------------	-	------DATE:  s11smi06_ _ _ _
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INI>ORSEMENT
TO:	FROM:

SAF/MRBR

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL
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

AIR FORCE DISCHARGE  REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2006-00009	

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

The  applicant  appeared  and  testified  before  the  Discharge  Review  Board  (DRB),  without  counsel,  at Andrews AFB on 11 May 2006.

The following additional exhibits were submitted at the hearing: Exhibit # 5:  Letters of Appreciation (12 pages)

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 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. 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  and other accomplishments.  In support of his contention, the applicant quoted a number of comments from Air Force officers and commanders which date to 1990 or earlier.  These comments and the applicant's positive service record were available during his Board oflnquiry, which found the applicant's service was best characterized as under other than honorable conditions (UOTHC).
They found the seriousness of the willful misconduct offset any positive aspects of the applicant's duty performance.  The Discharge Review Board concluded the discharge was appropriate for the reasons which were the basis for this case.

Issue 2.  Applicant contends his discharge "was improper because it failed to acknowledge a legitimate but previously undiagnosed mental health condition, paraphilia scatologia (pg 61, Record of Proceedings), that contributed directly to the misconduct involved."  As indicated by the applicant's citation to the transcript of his Board oflnquiry, that Board heard extensive testimony about the applicant's mental health.  The applicant's own expert witness at the BOI testified that his condition did not rise to the level of a legal defense for his actions.  At the DRB, the applicant testified that since his discharge, he has successfully completed treatment of his condition, and that the original diagnosis of his condition was never changed.
The DRB found the applicant's mental health condition was properly considered at the time of his discharge.

Issue 3 describes the discharge proceedings as "improper and biased and pre-disposed to take UOTHC action, having been heavily influenced by" local press coverage, the salacious nature of the misconduct, the strained relationship between the base and the community, and the fact that civilian prosecutors pursued a sentence to jail notwithstanding two recommendations for probation.  The DRB determined the applicant failed to meet his burden of proof regarding Issue 3.  The Board of Inquiry transcript contains numerous newspaper articles about the applicant's arrest and conviction, as well as a letter from the Oneida County Probation Department noting that pre-sentence investigations recommended probation instead of jail.
Finally, the applicant described the probation recommendations in his testimony before the DRB.  However, no evidence supported the contention that the newspaper coverage or the prosecutors' decisions improperly impacted the discharge proceedings.  Media coverage of the applicant's conduct, while not evidence of the	

underlying offenses, may properly be considered as evidence of the impact of the applicant's actions.  In conjunction with Issue 3, the applicant complains of four alleged procedural errors during his Board of Inquiry:  (1) the Legal Advisor's denial of his request to produce the applicant's former commander as a live character witness; (2) the Legal Advisor's interruption of the applicant's unswom statement with the statement "see if we can wrap this up in about ten minutes;" (3) the Legal Advisor's denial of a surrebuttal during closing arguments; and (4) the fact the BOI members deliberated for only 75 minutes.  The ORB was troubled by the Legal Advisor's interruption of the applicant's unswom statement.  However, the DRB noted the applicant's unswom statement was quite detailed and that the Legal Advisor subsequently offered the applicant additional time.  The remaining actions complained of by the applicant were within the discretion  of the Legal Advisor and the BOI members, and do not provide grounds for upgrade or changing the basis of the discharge.

Issue 4 presents the positive recommendations of two probation officers and one correctional facility educational coordinator as additional mitigating considerations.  The DRB was impressed with the applicant's response to his arrest, conviction and discharge, and these recommendations are consistent with that response.  However, the police reports, media coverage and victim statements clearly show his crimes had a significant impact upon the victims and the community.  Issue 4 overlaps the contentions of Issue 1 and Issue 5, which address the applicant's behavior prior to and after his discharge.  The applicant's discharge and its basis appropriately characterize the applicant's service.

Issue 5 applies to the applicant's post-service activities.  The DRB was pleased to see that the applicant was doing well and runs a successful business.  However, no inequity or impropriety in his discharge was suggested or found in the course of the hearing.  The Board concluded the misconduct of the applicant appropriately characterized his term of service.

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