RECORD 
AIR FORCE BOARD FOR 

OF PROCEEDINGS 
CORRECTION OF MILITARY RECORDS 

3UL 2 4 1998 

IN THE MATTER OF: 

- -  

..I 

APPLICANT REUUESTS THAT: 

DOCKET NUMBER:  97-01721 
COUNSEL : 
HEARING DESIRED:  YES 

1.  He  be  reinstated  in  the  U.  S. Air  Force  in  the  grade  of 
ma j or. 

2.  He receive back pay and ‘allowances from the date of discharge 
to the date of reinstatement. 
3.  He  be  given  credit  for  time  in  grade  from  the  date  of 
discharge  to  the  date  of  reinstatement  for pay, promotion  and 
retirement purposes. 

4.  Or,  in  the  alternative, he  be  given  early  retirement with 
credit for active duty time to the date of his early retirement; 
or,  alternatively,  that  he  be  allowed  to  elect  Voluntary 
Separation Incentive/Special Separation Bonus  (VSI/SSB) . 

APPLICANT CONTENDS THAT: 

Counsel for the applicant states that applicant was  found, by a 
preponderance  of  the  evidence,  to  have  engaged  in  serious or 
recurring misconduct based almost exclusively upon the testimony 
of  a  witness  who  is,  and  was  an  admitted  liar  and  whose 
credibility, or lack thereof, could not and did not sustain proof 
by  a  preponderance  of  the  evidence.  Counsel  states  that  the 
government failed to establish, by a simple preponderance of the 
evidence that applicant had  (1) Solicited to suborn perjury;  ( 2 )  
Obstructed justice; ( 3 )   Violated an order; and,  (4) Solicited to 
suborn perjury.  If one then eliminates those charges leveled by 
the  complaining  witness,  what  we  have  is  an  officer  with  a 
drinking  problem  who  was  never  given  alcohol  rehabilitation 
treatment.  He therefore deserves and is entitled to the relief 
requested. 
In support of his appeal, applicant submits a copy of a statement 
from  a  female  witness  recanting  a  first  recantation  in  sworn 
testimony at a Board of Inquiry (BOI). 

Applicant's and counsel's submission is attached at Exhibit A. 

STATEMENT OF FACTS: 

Applicant also wrongfully communicated to 

applicant wrongfully had  sexual intercourse with m, the 

Applicant was appointed a second lieutenant in the Reserve of the 
Air  Force on  28  September  1979  and  ordered  to  extended  active 
duty for a period of 48 months. 
He was subsequently appointed a captain in the Regular Air Force 
on 18 December 1985 and promoted to the grade of major with date 
of rank  (DOR) of 1 May 1991. 
While serving in the grade of major, the Wing Commander notified 
applicant on 2 June 1993, that he was initiating action under AFR 
36-2,  Chapter 3,  paragraph  3-7d.  The commander stated that he 
was  taking  action  because  of  applicant's serious or  recurring 
misconduct  punishable  by  military  or  civilian  authorities, 
specifically: 
During  the  months  of  May  and  June  of  1992, 
wife of a noncommissioned officer in the USAF.  During the same 
period, applicant physically assaulted 
by striking her 
on the head, arm and face, pulling her hair and pushing her to 
the ground. 
threats to  kill her.  For  this  conduct, applicant  received an 
Article 15 on 12 February 1993 with forfeitures of $1728 pay per 
month for 2 months and a reprimand. 
Applicant  acknowledged receipt of  the Letter of Notification on 
2 June 1993.  Applicant indicated that he understood that he was 
to  contact  the  Area  Defense  Counsel  to  discuss  procedures 
involved and his rights and options in this action.  On  2  July 
1993, applicant was counseled by his detailed defense counsel. 
On  21  October  1993,  applicant's commander added  an addendum to 
the initial action under AFR 36-2 of 2 June 1993.  The commander 
stated that  the existing action under AFR  36-2  continues to be 
based  on applicant's serious or recurring misconduct punishable 
by  military  or civilian authorities.  The commander added more 
recent incidents of misconduct to serve as further bases f o r   the 
action against  the applicant.  Specifically:  (1)  On or about 
,  with  the  intent  to 
1 June  1993,  applicant  solicited 
deceive HQ AMC/CC, to make  a  fa1 
statement  recanting 
her prior truthful statements to the AFOSI and to the wing legal 
office.  Applicant  thereby  induced her  to commit perjury  since 
the  statement  was  later  sworn  to  before  a  notary  public  at 
applicant's direction.  Applicant received a Letter of Reprimand 
on 8 September 1993  for this misconduct.  (2)  On 14 September 
1993,  applicant  was  drunk  on  duty  and  engaged  in  conduct 
unbecoming of  an officer.  Applicant  received an Article  15  on 
17 October  1993. 
n or 
(3)  On or about  3  September 
about  12 September  1993,  applicant  contacted 
in 
violation of a lawful written order, to refrain from any contact 

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with -4-11 .  On 3 September 1993, applicant visited- 
at her residence, and applicant called her residence between on 
or  about  4 September  1993  and  on  or  about  12  September  1993. 
Applicant  again  attempted  to  persuade  her  to  recant  her 
accusations  against  him  and  to  impede  adverse  administrative 
action against him by  convincing her not  to cooperate with Air 
Force  officials.  Applicant  received  a  Letter  of  Reprimand  on 
28 September 1993. 
On  22  October  1993,  applicant  acknowledged  receipt  of  the 
addendum to the letter of notification of action under AFR  36-2. 
On 15 November 1993, applicant stated that he had been counseled 
by his detailed defense counsel. 
The Air Mobility Command Vice Commander  (AMC/CV),  on 30 November 
1993, notified the applicant of discharge action under AFR 36-2. 
The  commander  stated  that  after  evaluating  all  information 
presented,  found  there  was  sufficient  evidence  to  require 
applicant  to  show  cause  for  retention on  active  duty  for  the 
reasons listed  (attached).  Applicant acknowledged receipt of the 
notification  on  6  December  1993  and  stated  that  he  had  been 
counseled by  his  detailed  defense counsel and  that  he  had  not 
applied  for  voluntary  retirement  and  had  not  tendered  his 
resignation.  Applicant indicated that he formally requested his 
case be processed under AFR  36-2  and that he intended to appear 
before the Board of Inquiry with his civilian counsel along with 
his detailed military defense counsel. 
On  1  February  1994,  applicant  was  notified  that  a  Board  of 
Inquiry  (BOI) would  convene  on  15  February  1994  at  March  Air 
Force Base  (AFB) ,  California  (CA) , to receive evidence and make 
findings and recommendations as to whether he should be retained 
in  the  Air  Force.  Applicant  acknowledged  receipt  of  the  BO1 
Notification on 1 February 1994. 
A  BO1  convened under AFR  36-2  at March  AFB,  CA  on 1 5   February 
The  BO1  found  that  applicant  committed  the  following 
1994. 
serious misconduct, as alleged in the notification letter and its 
addendum:  (a) In September 1990,  operated a vehicle  on Norton 
AFB, CA, while  drunk;  (b) On divers occasions between May  1990 
and June 1992, wrongfully had  "sexual intimacy" with an enlisted 
man's wif 
(c) Between September 1990 and July 1992, 
assaulted 
striking her on the head, arm and face, 
pulling her hair, and pushing her to the ground;  (d) Between May 

and June 1992, wrongfully communicated threats to kill- 
;  (e) In  June  1993,  solicited 

to  make  a  false 
written  statement  recanting  prior  t=tatements 
she  had 
made against applicant; and, (f) In September 1993, was drunk on 
duty and engaged in conduct unbecoming an officer, to wit: while 
in uniform, having an obvious and offensive odor of  alcohol on 
his person.  The Board recommended that applicant not be retained 
in  the  Air  Force  and  that  he  be  discharged  with  a  general 
discharge. 

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On  14  April  1994,  the  Deputy  Staff  Judge Advocate,  HQ AMC/JA, 
stated that in their opinion, the case file is legally sufficient 
to support the general discharge of the applicant. 

' 

The Air  Force Board  of  Review met  at 
on  16  May 
1994 to consider applicant's case.  Their determination was that 
applicant should not be  retained on active duty and recommended 
that  he  be  removed  from  active  duty  in  the  U.  S.  Air  Force 
pursuant  to AFR  36-12  and  that he be  discharged with a general 
discharge  (under honorable conditions). 
On  25  May  1994,  the  Secretary  of  the  Air  Force  ordered  that 
applicant  be  removed  from  active  duty  in  the  U. S. Air  Force 
pursuant to AFR  36-12 and directed that he be discharged with a 
general discharge. 
Applicant was discharged on 6 June 1994 under the provisions of 
AFR  36-12  (Involuntary Discharge:  Misconduct)  with  a  general 
(under honorable  conditions) discharge.  He  served 14  years, 8 
months and 9 days of active duty. 

AIR FORCE EVALUATION: 

The  Chief, Retirements Branch, HQ AFPC/DPPRS,  states, in part, 
that members pending court-martial charges, under investigation, 
under civil court charges, notification of proposed action under 
Article  15, involuntary separation  (for cause or promotion non- 
qualified) or separation under involuntary separation directives, 
are  excluded  from  applying  for  separation or  retirement  under 
draw down programs.  Applicant was not eligible for any draw down 
program.  They recommend the application be denied. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
Applicant's counsel  submitted a  letter, dated  3  November  1997, 
stating  that  he  and  the  applicant  agree  that  applicant  was 
ineligible  for  favorable  treatment  due  to  the  administrative 
action.  However, they agree that by vitiating the administrative 
action, the Board can grant the relief requested. 
A copy of counsel's letter is attached at Exhibit E. 

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ADDITIONAL AIR FORCE  EVALUATION: 
The Senior Attorney-Advisor, HQ AFPC/JA,  states, in part,  that 
evidence  was  presented  at  the  Board  of  Inquiry  (BOI)  that 
applicant received three Article  15s.  Also  that  he  received a 
Letter  of  Reprimand  for  threatening  and  improperly  influencing 
into  signing  a  sworn  statement  recanting  her 
accusations against him, and that he received another Letter of 
Reprimand  for  again  attempting  to  persuade 
from 
testifying against him afterahaving been o r d e r e d e m m a n d e r  
not to contact her. 

testified  at  the  BO1  and  was  cross-examined  by 
s counsel.  She then  testified  that  she wrote  out  a 
93 handwritten recantation at  applicant's request, and 
that the statements she made in that document were not true.  In 
support of applicant's request for relief, applicant now submits 
another 
,  handwritten,  recantation  dated  17 November 
1994 by 
It was the BOI%  responsibility to weigh all the evidence before 
making  its findings and recommendations.  In the opinion of the 
board  members,  all  of  the  evidence,  taken  together,  was 
sufficient  to  establish  the  validity  of  the  grounds  for  the 
action against applicant.  As a general proposition, recantation 
testimony is considered exceedingly unreliable. 

Applicant's counsel stated applicant did have an alcohol problem 
that should have been treated.  If he had an alcohol problem and 
now does not have one, he is left with the logical inference that 
rehabilitative effort such as his punishments under Article  15, 
imposition of Letters of Reprimand, and associated administrative 
actions,  had  the  desired  effect-he  is  now  in  control  of  his 
alcohol-related problems.  While alcohol certainly played a role 
in  at  least  some  of  the  incidents  leading  to  applicant's 
discharge,  the  administrative  actions  taken  against  applicant 
afforded  him  numerous  opportunities  at  rehabilitation. 
HQ 
AFPC/JA recommends applicant's requests should be denied. 
A  complete  copy  of  the  Air  Force  evaluation  is  attached  at 
Exhibit F. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

A copy of the Air Force evaluation was forwarded to applicant and 
his counsel on 20 April  1998 for review and  response within 30 
days.  As  of  this date, no response has been received by  this 
off ice. 

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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 .   Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  After 
a  thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we are not persuaded that he should be reinstated in 
the Air Force in the grade of major with back pay and credit for 
time  in grade;  or  in  the  alternative, that  he  be  given  early 
retirement  and  allowed  to  elect  VSI/SSB. 
Applicant's  and 
counsel's contentions are  duly  noted;  however, we  do  not  find 
these assertions, in and by  themselves, sufficiently persuasive 
to override the rationale provided by the Air Force.  The offices 
of  the  Air  Force  have  adequately addressed  the  issues and  we 
therefore  agree  with  their  recommendations  and  adopt  the 
rationale  expressed  as  the  basis  for  our  decision  that  the 
applicant has failed to sustain his burden that he has suffered 
either  an  error  or  an  injustice. 
Therefore,  we  find  no 
compelling basis to recommend granting the relief sought. 
4.  The documentation provided with this case was sufficient to 
give the Board a clear understanding of the issues involved and a 
personal  appearance, with  or  without  counsel, would  not  have 
materially added to that understanding.  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. 

The following members of the Board considered this application in 
Executive  Session on 2 3   June  1998, under the provisions of AFI 
3 6 - 2 6 0 3 .  

Mr. Wayne R. Gracie, Panel Chair 
Mr. Dana J. Gilmour, Member 
Mr. Allen Beckett, Member 

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The following 

documentary evidence was considered: 

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Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 

DD Form 149, dated 24 May 97, w/atchs 
Applicant's Master Personnel Records. 
Letter, HQ AFPC/DPPRS, dated 13 Oct  97. 
Letter, AFBCMR, dated 13 Oct  97. 
Counsel's Letter, dated 3 Nov 97. 
Letter, HQ AFPC/JA, dated 23 Mar 98. 
Letter, AFBCMR, dated 20 Apr 98. 

WAYNE R. GRACIE 
Panel Chair 

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