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* 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  96- 00592 
COUNSEL : 
HEARING DESIRED:  NO 

_ - -  - v  

2.5  19s' 

APPLICANT REQUESTS THAT: 
His pay grade of 0-8  be  reinstated retroactive to 1 Mar  93  with 
back pay and/or other appropriate relief. 

APPLICANT CONTENDS THAT: 
He  was  denied  the opportunity to obtain witness  statements and 
evidence to present in response to the action taken against him 
under 10 USC 1370. 
In  support  of  his  appeal,  the  applicant  provided  a  counsel's 
brief  and  numerous  other  documents  associated  with  the  matter 
under review. 
Applicant's  complete submission is at Exhibit A. 

STATEMENT OF FACTS: 
On  28  Feb  93,  the  applicant  was  relieved  from active duty  and 
retired,  effective  1  Mar  93,  in  the  grade  of  colonel. 
His 
highest  grade  held  was  major  general. 
He  was  credited  with 
32 years, 11 months, and 12 days of active duty service. 
Applicant's OER/OPR profile since 1 9 8 1  follows: 

PERIOD ENDING 
10 May 8 1  
10 May 82 
7 Dec 8 2  
3  Nov 83 
3 1  Jul 84 
1 6  Apr 85 
1 6  Apr 86 

EVALUATION 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 
1-1-1 

(Examiner's  Note: 
General  O f f i c e r   evaluation  reports  with  a 
close-out date  on  or  before  31  Jan 91  w e r e   destroyed  by  order  of 
the  Secretary of  the Air Force). 

30 Jun 91 
30 Jun 92 

10 (1-10 (highest)) 
8  (1-10 (highest)) 

Available  documentation  reflects  that,  on  22  Sep  92, 
the 
commander notified the applicant that he was considering whether 
he should be punished under Article 15, Uniform Code of Military 
Justice  (UCMJ) based  on allegations that  the applicant  did,  on 
divers occasions between on or about 24 Jul  91 and on or about 
7 Aug  91,  wrongfully  solicit Major  S---  D.  w---  to  dispose  of 
two  AK-47 
certain  captured  or  abandoned  property,  to  wit: 
weapons, one rocket propelled grenade, and one hand grenade, each 
of some value, and of a total value  in excess of $100, for the 
purpose  of  receiving  a  benefit  for  himself;  and  on  or  about 
23 Jul 91,  violated  a  lawful  general  order,  to  wit: 
General 
Order  1, dated  30 Aug  90,  issued by  Headquarters United States 
Central Command, by wrongfully taking war trophies, to wit:  two 
AK-47  weapons . 
After  consulting  military  legal  counsel,  the 
applicant waived his right to demand trial by  court-martial and 
accepted the nonjudicial punishment proceedings under Article 15. 
He indicated that he desired to make an oral presentation to the 
commander  and  submitted  written  comments  for  review. 
On 
29  Sep 92,  after  considering  the  matters  presented  by  the 
applicant, the commander found that the applicant had  committed 
one or more of the offenses alleged and imposed punishment.  The 
applicant  received  a  reprimand.  Applicant  did  not  appeal  the 
punishment.  A  review by  legal authority  found  the nonjudicial 
punishment under Article 15 to be legally sufficient. 
On 7 Dec 92,  the Deputy Chief of Staff for Personnel notified the 
applicant that a determination would be made pursuant to 10 USC 
1370 of the grade in which the applicant would be  retired.  On 
7 Jan 93,  the Air Force Personnel Board considered his case.  The 
Board  found  the  following  operative  facts  with  respect  to  the 
allegations of which the applicant was given notice: 

Alleqations 1 and 2:  Weapons Violations -  While serving as 
the Chief of the USMTM in Saudi Arabia during the summer of 1991, 
the applicant wrongfully retained two AK-47 rifles and improperly 
solicited his executive officer to dispose of the rifles in a way 
which  would  inure  to  the  applicant's  personal  benefit. 
Notwithstanding the applicant's  protestations of  innocence,  the 
Board  concluded  that  a  preponderance  of  evidence  demonstrated 
that  the  applicant  did,  in  fact,  wrongfully  retain  the  AK-47 
rifles  and  did  improperly  solicit  his  executive  officer  to 
dispose  of  the  weapons  in  a  way  which  would  inure  to  the 
applicant's  benefit. 

Alleqation 3:  Official Travel to Denver, Colorado -  Between 
the  summers  of  1989  and  1991,  the  applicant  demonstrated poor 

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AFBCMR  96- 00592 

. 

judgment by making four trips from his official duty location to 
Denver, Colorado under circumstances which created the appearance 
that he was abusing the authority of his grade and position by 
traveling at public expense to satisfy his own private interests. 
The Board concluded that the applicant's  repeated o f f i c i a l   duty 
travel  to  Denver  constituted  an  abuse  of  his  discretion  to 
determine  what  governmental  travel  was  appropriate,  and 
demonstrated  qualities  of  judgment  below  that  expected  of  an 
officer of  his rank and position. 

Alleqation  4 :  

Receipt  of Gifts -  While  assigned  in  Saudi 
Arabia,  the  applicant  failed  to  report  receipt  of  a  set  of 
watches  as  gifts,  in  violation  of  Air  Force  Regulation  11-27, 
While  the  Board  concluded  that  the  allegation  in  question was 
supported by  a  preponderance of  evidence,  it  nonetheless noted 
that its gravity, standing alone, paled in relation to some other 
allegations. 
However,  in  the  Board's  view,  the  applicant's 
insensitivity  to  the  regulatory  protocol  of  recording  and 
reporting receipt of gifts was part of a larger pattern, and the 
Board elected to view it primarily in that light. 

Shipment  of  Government  Property  with 
Alleqation  5 : 
ehold Goods - Applicant was not culpable in allowing items of 
Hous 
gove 
rnment  property  to  be  shipped  from  Saudi  Arabia  with  his 
household  goods.  While  the Board  felt the applicant's  conduct 
helped  create  the  appearance  that  he  had  improperly  allowed 
government property to be  shipped with  his  household goods,  it 
nevertheless  concluded  the  specific  allegation  of  which  the 
applicant was given notice was not  substantiated, and therefore 
determined  not  to  consider  it  in  assessing  the  applicant's 
service , 

Allegation  6:  Misuse  of  Saudi  Peace  Shield Case  Funds  - 
Between Jan 88 and J u l   89, while serving as the Director, AF/PRI, 
the  applicant  demonstrated  poor  judgment  and  created  the 
appearance  of  using  his  office  for  his  personal  benefit  by 
misusing Saudi Peace Shield case funds for TDY travel.  Applicant 
insisted he never concerned himself with such mundane matters as 
which fund cite should be used  for his travel, and he was never 
confronted regarding the  Peace Shield  fund  cite.  Moreover,  if 
the wrong fund cite was used, the applicant maintained it was the 
fault of people working f o r   him, not his.  In the Board's  view, 
the  applicant's  contentions  regarding  use  of  the  Peace  Shield 
fund cite were not credible, and the allegation was substantiated 
by a preponderance of evidence. 
In  forming  its  judgment  as  to  the  quality  of  the  applicant's 
service, the Board paused  to note the considerable deference it 
gave to the views of those distinguished individuals who viewed 
the  applicant's  service  as  a  general  officer  favorably. 
Nonetheless,  it  was  the  Board's  heavy  burden  to  weigh  all  the 
evidence  and  exercise  its  independent  judgment  in  a  case  of 
obvious importance to both the applicant and the United  States. 
Had those individuals who  shared a  favorable perspective  of  the 

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AFBCMR 96-00592 

applicant's  service  been  privy  to  the  exhaustive  evidence 
considered by  the Board, they too might have joined the Board's 
judgment . 
On  14 Jan 93, the Secretary of the Air  Force indicated that he 
had carefully considered the findings and advisory assessment of 
the Air Force Personnel Board, the supporting documentation, the 
recommendation of the CINCUSAFE, and the materials  submitted by 
the applicant and counsel.  He concluded that the applicant did 
not meet  the standards of service expected of a general officer 
in the United States Air Force.  He found that the applicant did 
not  serve  satisfactorily  in  the  grades  of  major  general  or 
brigadier general, within  the meaning  of  Section  1370  of Title 
10, United  States  Code.  Therefore,  the  Secretary  of  the  Air 
Force  accepted  the  applicant's  application  for  retirement  and 
directed that he be  retired in the grade of colonel as soon as 
possible . 

AIR FORCE EVALUATION: 
The General Law Division, HQ USAF/JAG, reviewed this application 
and  recommended denial.  JAG noted the applicant's  allegations. 
According  to  JAG,  the  Secretary's  grade  determination  in  this 
case was  legal and proper.  The decision was  not  arbitrary and 
capricious, it was supported by substantial evidence, and it was 
in  accordance  with  the  applicable  statute. 
The  procedures 
utilized by  the Secretary to reach his decision were reasonable 
and his decision was in accordance with the recommendation of a 
Board  comprised of three lieutenant generals.  Furthermore, the 
applicant's  continuing  misconduct,  which  evidenced  a  clear 
disregard  for  officership,  leadership  and  the  law,  warranted 
retirement in the grade of colonel.  In JAG'S  view, no injustice 
or legal error was found in the record. 
A complete copy of the JAG evaluation is at Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
In his response, counsel indicated that nothing in the advisory 
opinion disputed the  fact  that  the applicant and  his  attorneys 
were denied the time and  resources needed to adequately respond 
to  the  Peace  Shield  fund  allegations  which  had  been  under 
investigation by  the  OS1  for  months.  Regarding  the  temporary 
duty  (TDY)  allegations, no time was provided for the applicant to 
obtain  statements from eleven witnesses in  Denver who  had  been 
interviewed by his defense attorneys and who supported his claim 
that substantive issues were addressed during the Denver TDYs. 
In  counsel's  view,  the  advisory  opinion  focused  on  facts 
favorable to the Air Force position, but ignored facts which were 

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AFBCMR 96-00592 

contradictory.  The record speaks for itself.  He challenges the 
Air  Force  to produce  evidence  that  any  other major  general  in 
Air  Force  history  has  been  treated  the  way  the  applicant  was 
treated.  All perspective was  lost in the applicant's  case.  To 
the extent the Air Force has substantiated any misconduct, which 
he challenges, his efforts serving this nation in time of peace 
and war  far outweigh any shortcomings.  There was no reasonable 
justification  for  singling  the  applicant  out  from  all  other 
generals  in  Air  Force  history  to  be  reduced  to  the  grade  of 
colonel in retirement.  For all these reasons, his loss of grade 
at  the  time  of  his  retirement  must  be  deemed  arbitrary, 
capricious, and unreasonable. 
Counsel's  complete response is at Exhibit E. 

The applicant has exhausted all remedies provided by existing 

THE BOARD CONCLUDES THAT: 
1. 
law or regulations. 
2.  The application was timely filed.' 
3 .   Insuffi,cient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error  or  injustice.  The 
applicant's complete submission was  thoroughly  reviewed and  his 
contentions were  duly  noted.  However, a majority of the Board 
does not find the applicant's  assertions sufficiently persuasive 
to  override the  rationale provided  by  the Air  Force  office of 
primary  responsibility  (OPR) . 
Therefore,  in  the  absence  of 
evidence which  shows to the  satisfaction of the Board  majority 
that  the  information  used  as  a  basis  f o r   the  Secretary's 
determination  of  the  grade  in  which  the  applicant  would  be 
retired  was  erroneous,  or  that  the  Secretary  abused  his 
discretionary  authority,  the  Board  majority  agrees  with  the 
recommendation of the OPR and adopts their rationale as the basis 
for  its decision that  the  applicant  has  failed  to  sustain his 
burden of establishing that he has suffered either an error or an 
in justice . 
Accordingly,  a  majority  of  the  Board  finds  no 
compelling basis to recommend granting the relief sought in this 
application. 

RECOMMENDATION OF THE BOARD: 
A majority of the panel  finds insufficient evidence of error or 
injustice and recommends the application be denied. 

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AFBCMR  96- 00592 

. 

The following members of the Board considered this application in 
Executive Session on  1 Sep 98, under the provisions of AFI  36- 
2603: 

Mr. Benedict A.  Kausal IV, Panel Chair 
Mr. Terry A.  Yonkers, Member 
Mr.  Patrick R. Wheeler, Member 

By  a  majority  vote,  the  Board  voted  to  deny  the  request. 
Mr. Wheeler  voted  to  grant  the  request  but  did  not  desire  to 
submit a minority report.  The following documentary evidence was 
considered: 

DD Form 149, dated 22 Feb 96, w/atchs. 
Exhibit A. 
Applicant's Master Personnel Records. 
Exhibit B. 
Letter, HQ USAF/JAG, dated 5 Apr 96. 
Exhibit C. 
Letter, SAF/MIBR, dated 29 Apr 96. 
Exhibit D. 
Exhibit E.  Letter, counsel, dated 30 Jun 96. 

@pM&JC 

E EDICT A.  KAUSAL 
Panel Chair 

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AFBCMR 96-00592