- 

4 . 

a 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  94- 00614 
COUNSEL : 

0 HEARI-NG DESIRED:  YES 

APPLICANT REOUESTS THAT: 

His 24  November  1 9 9 3   general discharge be rescinded; the Article 15 
actions and reprimands be expunged; the Enlisted Performance Report 
(EPR) closing April  1 9 9 1   be  removed from his  records; his  rank  of 
technical  sergeant  (E-6)  be  restored  with  all  back  pay  and 
allowances;  and  he  be  given  supplemental  promotion  consideration 
for promotion to the grade of master sergeant  ( E - 7 ) .  
EXAMINER' S  NOTE : 
Applicant  submitted  this  application  on 
However,  in  accordance  with  counsel's  request 
28  December  1 9 9 3 .  
the  case  was  withdrawn,  without  prejudice,  on  10  February  1 9 9 5 .  
Per letter dated 3  March  1 9 9 7 ,   counsel requested the processing of 
the case be continued  (Exhibit J) . 

APPLICANT CONTENDS THAT: 

Oral  and  written  statements  made  by  him  during  the  Article  15 
process  were  done  without  him  having  been  read  his  rights  under 
Article  31, UCMJ.  Because of  this, the Article  15 actions should 
not  have  been  considered  as  evidence  in  his  discharge  board 
hearing. 

The  EPR  closing  1 April  1 9 9 1   should be  expunged  from his  records 
because he still perceives himself as a victim of racism. 

In  support  of  his  request,  applicant provided  counsel's  expanded 
comments, with 14 attachments.  (Exhibit A) 

STATEMENT OF FACTS: 

Applicant  contracted  his  initial  enlistment  in  the  Regular  Air 
Force on  2  February 1 9 8 4 ,   in  the  pay  grade of  airman  first class 
He  served  on  continuous  active  duty,  entering  his  last 
( E - 3 ) .  
enlistment  on  1 8   October  1 9 9 1 .  
His  highest  grade  held  was 
technical sergeant.  He was reduced to the grade of staff sergeant 
(E-5), effective  1 March  1 9 9 3 ,   as  a  result  of  punishment  imposed 
under Article 15, UCMJ. 

. 

A resume of applicant’s APRs/EPRs follows: 

PERIOD CLOSING 

OVERALL EVALUATION 

1 Feb 
1 Feb 
1 Feb 
15 Sep 
15 Sep 
1 Apr 
1 Apr 
1 Apr 
14 Oct 
11 Feb 
11 Feb 

85 
86 
87 
87 
88 
89 
90  (EPR) 
91 
91 
92 
93 

* 

9 
9 
9  (w/LOEs) 
9 
9 
9 
4 
3  (Referral Report) 
5 
5 
2 

*  Contested  report. 
Applicant  appealed  this  report  under  the 
provisions  of  AFR  31-11,  On  24  June  1991,  the  Airman  Personnel 
Records Review Board denied his request, 

On  21 April  1992, the AFBCMR  considered and denied an application 
submitted by applicant requesting that the EPR closing 1 April 1990 
be  declared  void  and  removed  from  his  record,  or  in  the 
alternative, the promotion recommendation be upgraded to a “5”; and 
that the EPR closing 1 April 1991 be declared void and removed from 
his records  (see Record of Proceedings at Exhibit C). 

On 23 February 1993, the group commander notified applicant of his 
intent to  impose  nonjudicial  punishment  under  Article  15, Uniform 
Code  of  Military  Justice  (UCMJ),  for  making  a  false  official 
statement  to  MSgt  E--- ,  on  or  about  September  1992,  to  wit: 
”extend my DEROS election option because it has been preapproved by 
my  commander,“ or words  to that effect, which  statement was  false 
in  that  his  commander never  preapproved  his  DEROS  extension.  On 
1 March  1993, applicant acknowledged that he understood his rights 
concerning  nonjudicial  punishment  proceedings,  that  he  had 
consulted  a  lawyer  and  he  waived  his  right  to  demand  trial  by 
court-martial,  and  that  he  desired  to  make  oral  and  written 
presentations  to  the  commander.  On  1  March  1993,  the  commander 
determined the applicant had  committed one or more  of the alleged 
offenses and imposed punishment consisting of a suspended reduction 
to  the  grade  of  staff  sergeant  and  45  days  of  extra  duty. 
Applicant did not appeal this decision. 

On  22  March  1993,  the  commander  notified  the  applicant  of  his 
intent to vacate the suspended punishment  for violation of Article 
92, UCMJ,  in that, on or about J&?-  March  1993, applicant  failed to 
obey a lawful order issued by. 
to remain in his  assigned 
living quarters.  On 25 March  1993, applicant acknowledged that he 
understood  his  rights  concerning  the  action  being  taken,  that  he 
had  consulted  a  lawyer,  and  that  he  desired  to  make  oral  and 
written  presentations  for  consideration.  On  25  March  1993,  the 
commander determined the applicant had committed one or more of the 
alleged offenses and vacated  the suspended nonjudicial punishment. 

2 

. 
AFBCMR 94-00614 

On  that  same  date,  applicant  acknowledged  that  he  had  seen  the 
action  taken  on  the  proposed  vacation  of  suspended  nonjudicial 
punishment. 

On  16  April  1993,  the  group  commander  initiated  administrative 
discharge action against the applicant for a pattern of misconduct, 
conduct prejudicial to good  order  and  discipline.  He  recommended 
that the applicant be  separated with an under other than honorable 
conditions  (UOTHC)  discharge. 
On  that  same  date,  applicant 
acknowledged  receipt  of  the  letter  of  notification,  that  legal 
counsel had been made available to him, and his understanding that 
approval  of  the  recommendation for  discharge  could  result  in  his 
receipt of a UOTHC discharge. 

On 8-16 June 1993, a Board of Inquiry convened under the provisions 
of  AFR  39-10,  to  determine  whether  discharge  prior  to  the 
expiration of  applicant's  term  of  service was  appropriate because 
of  a pattern  of misconduct, conduct prejudicial  to good  order and 
discipline.  After considering all the evidence in closed session, 
by  secret ballot, a majority of the voting members concurring, the 
board  found that  applicant:  (a) was,  on  or  about  12 March  1993, 
placed  on quarters due to an illness and was  ordered to remain in 
his assigned living quarters during the period  he was e 
Y 
duty and he  failed to obey this lawful ord 
(b) did, on or about 31 August  1992, make t 
false  statement  to  extend  his  DEROS  opti 
it  had  been 
preapproved by his commander, or words tb that effect;  (c) did not, 
on  or  about  23  March  1993,  telephone  the  Numbered  Air  Force 
commander  about  the  status  of  leave  he  requested,  displaying  a 
disregard  for  the  respect deserved by  any  supervisor  let  alone a 
major  general  and  a  numbered  Air  Force  commander;  (d) did,  on  or 
about  22  March  1993,  communicate  to  the  Governor  a  need  for  his 
assistance  ensuring  his  military  leave  to  attend  a  modeling 
competition in-. 
despite his commander telling him that his 
leave would not be approved because of a Health Services Inspection 
scheduled for 11-16 April  1993;  (e) was not, on or about 23 March 
1993,  removed  from  the  dental  squadron  due  to  his  continued 
disruptive behavior  and  failure to  follow his  respective chain of 
command;  (f) did not, on or about 7 July-11 December 1992, submit 
seven  suggestions  to  the  Air  Force  Suggestion  Program  concerning 
dental  topics. 
The  suggestions  were  unclear  and  based  upon 
unresearched  ideas,  discredited  his  job  related  knowledge  and 
skills,  created  turmoil  among  the  staff  and  created  unfavorable 
publicity  for  the  clinic.  Specifically, one  of  his  suggestions 
alleged that Navy dentists were not seeing as many patients as Air 
Force  dentists  which  was  false,  full  of  innuendoes  and  almost 
ruined  superb Air  Force  and  Navy  squadron  dental  relations.  The 
Board found applicant was subject to discharge under the provisions 
of AFR  39-10, paragraph 5-47b,  and recommended he be separated with 
a  general  discharge  and  that  he  not  be  offered  probation  and 
rehabilitation with a conditional suspension of the discharge. 

On 22 November  1993, the Chief, Civil Law,  found the  file legally 
sufficient and  the board's  findings and recommendations consistent 

3 

. 
AFBCMR  94-00614 

with  and  supported by  a  preponderance  of  the  evidence.  The  wing 
staff judge advocate concurred.  On 22 November 1993, the discharge 
authority  approved  a  general  discharge  and  determined  that 
probation and rehabilitation were inappropriate. 

On 24 November  1993, applicant was discharged under the provisions 
of AFR 39-10 by reason of misconduct, with service characterized as 
general  (under honorable  conditions) . 
He  was  credited  with  10 
years and 8 months of active Federal service. 

AIR FORCE EVALUATION: 

The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
reviewed this application and  found the Article 15 actions legally 
sufficient and procedurally sound. 

JAJM  stated applicant’s contentions that  he  simply was  not  guilty 
of  the  stated  offenses  is  simply  without  merit. 
Applicant‘ s 
personnel  records  contain  the  supporting  documentation  that 
provided  the  basis  for  the  two  Article  15  actions. 
The 
representations of  the Base  Personnel NCO were  that  applicant had 
clearly misrepresented  the  status  of  his  commander’s  approval  of 
the  DEROS  action  to  him.  The placing  on  quarters letter  clearly 
put  applicant  on  notice  as  to  what  was  required  of  him  and  his 
actions,  as  observed  directly  by  his  commander,  clearly  violated 
his on-quarters status.  Applicant‘s procedural complaint that the 
Article  15  process  took  place  without  rights  advisement  is  also 
wholly without merit.  The Article  15 documents appear  regular on 
their  faces  and  it  appears  that  applicant  voluntarily  waived  his 
right  to  appear  before  a  court-martial  and  thus  avail  himself  of 
all  of  the  rights  that  such  a  forum  provided. 
By  contrast, 
nonjudicial  punishment  proceedings  are  essentially  administrative 
in nature and  the  Fifth and  Sixth Amendment  rights that applicant 
would have enjoyed at a court-martial do not attach.  There was no 
requirement that  rights advisements be given during the Article 15 
presentations. 
The  discharge  board  thus  acted  properly  in 
receiving the records into evidence.  There is also no evidence to 
establish  that  applicant‘s  attorney  forced  him  to  accept  the 
Article 15s.  (Exhibit D) 

The  Retirements  &  Separations  Program  Section,  AFMPC/DPMARSP, 
reviewed  this  application and  recommended  denial.  After  a  review 
of  the  case,  DPMARSP  found no  error  or  irregularities causing  an 
injustice to the applicant.  The discharge complies with directives 
in  effect  at  the  time  of  applicant’s  discharge. 
The  records 
indicate applicant‘s military  service was  reviewed and appropriate 
action was taken.  (Exhibit E) 

The  SSB  and  BCMR  Appeals  Section,  AFMPC/DPMAJAl,  reviewed 
applicant’s  request  that  the  EPR  closing  1 April  1991 be  voided. 
DPMAJAl  stated  that  the  applicant  has’ provided  bits  of  his  own 
opinion  (or  that  of  whomever  authored  his  brief)  rather  than 

4 

AFBCMR 94-00614 

8 

submitting  concrete  evidence  in  the  form  of  statements  from 
witnesses who  could verify  that  the  evaluation represented on  the 
contested EPR  was  driven by,  or was  the direct  result of, alleged 
"racism."  Furthermore, his analysis presupposes that the rater and 
indorser both  conspired in this "racism" since they both  cited his 
shortcomings  in  their  comments. 
Although  alleged,  his 
documentation fails to  show that  the  evaluators didn't  provide  an 
accurate report at  the  time this EPR  was  rendered.  Even his  own 
evidence  (atch 12) states, "There was  an investigation and.. .there 
were no signs of mismanagement or racial discrimination. ' I  
(Exhibit 

The  Chief,  Social  Actions  Branch,  AFMPC/DPMYCS,  noted  counsel's 
statement  that,  "Where  under  the  application  of  due  process  and 
equity,  were  violated  when  applicant  filed  a  Social  Action 
complaint when  the  commander was  one  of  parties  being  complained 
about when there is an off line conversation between social actions 
personnel and the commander giving the commander the results of the 
investigation, which procedure is not allowed by AFR  30-2."  DPMYCS 
stated applicant's  allegations were not substantiated.  The results 
of  the  inquiry were briefed  to applicant and documented on the AF 
Form 1587  (Equal Opportunity and Treatment  Summary) 
There is no 
record  that any  of  the  alleged  offenders were  briefed  the results 
of the inquiry.  (Exhibit G) 

The  Airman  Promotions  Branch,  AFMPC/DPMAJWl,  provided  comments 
addressing reinstatement of applicant's  rank  of technical sergeant 
and supplemental promotion consideration, 

Should  the  Board  void  the  Article  15  action  and  reinstate 
applicant's  technical  sergeant  grade,  he  would  have  an  effective 
date and date of rank of 1 July 1991.  Based on this date of rank, 
the  first  time  he  would  have  been  considered  for  promotion  to 
master  sergeant  would  have  been  cycle  94A7  (promotions effective 
Aug  93  -  Jul  94),  providing  he  was  otherwise  eligible  and 
recommended by his commander. 

Providing the applicant is returned to active duty without a break 
in  service,  his  technical  sergeant  grade  is  reinstated,  and  the 
Board voids the contested EPR, he will be  entitled to supplemental 
promotion  consideration  beginning  with  cycle  94A7  to  master 
sergeant once  he  has  tests on  file.  This is  contingent upon  the 
applicant  being  otherwise  eligible  and  recommended  by  his 
commander.  DPMAJWl noted applicant's  EPR  closing 11 February 1993 
(Not  recommended for promotion at this 
has an overall rating of "2" 
time) 

(Exhibit H) 

The Senior Attorney-Advisor, AFPC/JA, reviewed this application and 
provided  comments  on  issues  raised  by  applicant's  counsel  with 
respect to due process and equity.  JA stated the context in which 
applicant's  counsel  uses  the  terms  "due  process"  and  "equity" 
essentially reduces them to mere surplusage, since they add nothing 
to the already fatally flawed arguments she propounds. 

5 

AFBCMR 94-00614 

In plain  language, applicant‘s  counsel is  stating the Air  Force’s 
actions  in  punishing  and  discharging  applicant  were  illegal 
(without “due process”) and unfair  (without “equity”).  The use of 
these legal terms of art adds nothing to the merits of applicant’s 
claim, however.  It merely raises the fundamental issues present in 
virtually  every  case  brought  before  the  AFBCMR:  Was  the  action 
taken  against  applicant  legal,  and  if  so, was  it  fair?  In  this 
case, the actions taken against applicant were both legal and fair. 

Unable  to  discern  any  error  or  injustice  warranting  relief,  JA 
*  recommended this application be denied in its entirety. 
The complete evaluation is at Exhibit K. 

APPLICANT’S REVIEW OF AIR FORCE EVALUATION: 

Applicant  disagreed  with  the  recommendations  in  the  advisory 
opinions and  stated that what  really needs to  happen  is  for  this 
case to be retried because it was not fairly conducted. 

Applicant  provided  copies  of  documentation  pertaining  to  the 
Article  15 actions, extracts  from  the discharge correspondence, a 
statement  from  the  individual  who  signed  the  quarters  policy 
letter, and a letter of recommendation. 

Applicant‘s response, with attachments, is at Exhibit M. 

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 probable error or injustice. 

a.  Applicant’s  contentions that  oral  and  written  statements 
made  by  him  during  the  Article  15  process  were  done  without  his 
having  been  read  his  rights  under  Article  31  are  duly  note. 
However, after  careful consideration of  the  evidence provided, we 
agree  with  the  comments  of  the  Air  Force  offices  of  primary 
responsibility (AFLSA and AFPC/JA) and adopt their rationale as the 
basis for our conclusion that the applicant has not been the victim 
of  an  error  or  injustice.  The  commander  had  the  discretionary 
authority to impose nonjudicial punishment under Article  15, UCMJ, 
when  he  concluded  that  reliable  evidence  existed  to  indicate  an 
offense  was  committed. 
When  offered  the  Article  15  actions, 
applicant  had  an  opportunity  to  demand  trial  by  court-martial 
thereby  requiring the prosecution  to establish his  guilt beyond  a 

6 

AFBCMR 94-00614 

and 
reasonable doubt.  However, he chose not to pursue this avenue 
not 
accepted  the  Article  15  actions  instead. 
Applicant  has 
the 
provided  any  evidence to  sufficiently convince the  Board  that 
the 
commander  abused  his  discretionary  authority  in  imposing 
Article  15  punishments.  Nor  did  we  find  any  evidence  that 
the 
applicant's  rights were  violated  during  the Article  15 process  or 
that  the  Article  15  actions  were  contrary  to  the  governing 
regulation.  Absent persuasive evidence applicant was denied rights 
to  which  entitled,  appropriate  regulations  were  not  followed,  or 
appropriate standards were  not  applied, we  conclude that  no basis 
exists  to  recommend  favorable  action  on  applicant's  request  to 
expunge the Article 15 actions from his records. 

s 

b.  With  regard  to  applicant's  request  that  the  EPR  closing 
1 April  1991 be  removed  from his  records, we  note  that other than 
his  own  assertions,  the  applicant has  not  presented  any  evidence 
showing that the evaluators who were tasked with the responsibility 
of  assessing  his  performance  were  unable  to  render  unbiased 
evaluations of his performance or that their ratings were based on 
factors  other  than  the  applicant's  duty  performance  during  the 
contested rating period.  In view  of the above and  in the absence 
of  evidence  to  the  contrary,  we  find  no  compelling  basis  to 
recommend removal of the report from the applicant's  records. 

c.  Having  found  the Article  15 actions  to  be  valid,  we  are 
not  persuaded  that  the  receipt  of  this  information into  evidence 
before  the administrative discharge board  was  improper or contrary 
to the governing  regulation in effect at the  time.  Therefore, in 
the  absence  of  persuasive  evidence  that  responsible  officials 
applied  inappropriate  standards in  effecting  the  separation, that 
pertinent  regulations  were  violated  or  that  applicant  was  not 
afforded all the rights to which entitled at the time of discharge, 
we  conclude  that  there  is  no  basis  upon  which  to  recommend 
favorable  action  on  his  request  to  rescind  his  administrative 
discharge, restore his previous rank of E-6, and allow him to meet 
a  supplemental promotion board  for promotion  consideration to  the 
grade of E- 7. 
4.  The  applicant's  case  is  adequately  documented  and  it  has  not 
been shown that a personal appearance with or without counsel will 
materially  add  to  our  understanding  of  the  issues  involved. 
Therefore, the request for a hearing is not favorably considered. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate the existence of probable 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. 

7 

. 
AFBCMR 94-00614 

* 

The  following members  of  the  Board  considered  this application in 
Executive  Session  on  15  May  1998,  under  the  provisions  of  AFI 
36-2603: 

Mr. LeRoy T. Baseman, Panel Chair 
Mr. Steven A. Shaw, Member 
Mr. Parker C. Horner, Member 

The following documentary evidence was considered: 

Exhibit A. 
Exhibit B. 
Exhibit C. 

Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 
Exhibit J. 

Exhibit K. 
Exhibit L. 
Exhibit M. 

DD Form 149, dated 28 Dec 93, w/atchs. 
Applicant's Master Personnel Records. 
Record of Proceedings, AFBCMR 92-00026, 
w/o Exhibits. 
Letter, AFLSA/JAJM, dated 19 Aug  94. 
Letter, HQ AFMPC/DPMARSP, dated 2 Sep 94. 
Letter, HQ AFMPC/DPMAJAl, dated 23 Sep 94. 
Letter, HQ AFMPC/DPMYCS, dated 17 Oct 94. 
Letter, AFMPC/DPMAJWl, dated 27 Oct 94. 
Letter, SAF/MIBR, dated 1 Nov 94. 
Letter from Counsel, dated 20 Jan 95; 
AFBCMR Response to Counsel, dated 10 Feb 95; 
Letter from Counsel, dated 3 Mar  97. 
Letter, AFPC/JA, dated 26 Jun 97. 
Letter, SAF/MIBR, dated 7 Jul 97. 
Letter from Applica 

LEROY T. BASEMAN 
Panel Chair 

8 

. 
AFBCMR 94-00614