ADDENDUM TO
                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:                       DOCKET NUMBER: 93-02889
                                        INDEX CODE:  131.09
    xxxxxxxxxxxx                  COUNSEL:  None

    xxxxxxxxxxxx                  HEARING DESIRED:  Yes

_________________________________________________________________

RESUME OF CASE:

The applicant was selected for promotion  to  brigadier  general  and,
based on his new duties, was “frocked” to that grade on  September 29,
1989. His actual promotion to brigadier  general  would  be  effective
when the appropriate vacancy occurred; thus, he never legally held the
grade on  active  duty.   However,  on   February  10,  1990,  he  was
apprehended by an Exchange store detective for  allegedly  shoplifting
men’s underwear worth $4.75 from the Lackland AFB Main  Exchange.  The
applicant denied any wrongdoing. The test examiner(s) opined that  the
polygraph examinations voluntarily taken by both the detective and the
applicant indicated no deception by the former and  deception  by  the
latter. The applicant continually maintained he was  innocent  of  the
shoplifting charge. He was offered the option to retire in  the  grade
of colonel in lieu of administrative actions, to include general court
martial. The applicant applied and was  approved  for  retirement.  He
received a Letter of Reprimand and retired on April 1,  1990,  in  the
grade of colonel.

On May 26, 1994, the  Board  considered  and  denied  the  applicant’s
request for reinstatement to active duty as a  brigadier  general,  at
least through the date he would have been eligible to retire  in  that
grade, or allow him to be retroactively recommended for retirement  in
the grade of brigadier  general.  The  Air  Force  Office  of  Special
Investigation (AFOSI) made their complete  report  available  for  the
Board’s review.

A copy of the Record of  Proceedings  (ROP)  with  attachments  is  at
Exhibit G.

In a letter dated October 20, 1998, the applicant asks that  his  rank
of brigadier general be retroactively restored, alleging in part  that
the Board’s “reliance upon the results of a polygraph examination  was
improper and inappropriate under the law,” that his retirement was not
voluntary “in the true sense of the word,” and  that  “the  Air  Force
knew the charges against [him] were baseless.”

Applicant’s complete submission, with attachments, is at Exhibit H.

Pursuant to a request from the AFBCMR Staff, AFOSI  again  made  their
complete investigative report available for the Board’s review.

_________________________________________________________________

AIR FORCE EVALUATIONS:

The USAF Polygraph Program Office  with  HQ  AFOSI/XOY,  reviewed  the
applicant’s  latest  submission  and   advised   the   applicant   was
administered  two  separate  polygraph  examinations,  on  14  and  21
February 1990, pertaining to  the  allegation  that  he  attempted  to
shoplift a pair of underwear. The polygraph examinations addressed the
relevant issues of whether he removed the underwear from  beneath  his
shirt and whether he knowingly had the underwear on his person when he
checked out of  the  exchange.  Both  examinations  conducted  on  the
applicant resulted  in  deception  being  indicated  to  the  relevant
issues. There was no deception indicated on  the  examination  of  the
exchange security official  who  observed  the  applicant’s  activity.
Review of all  of  the  examinations  conducted  in  this  matter  was
accomplished and each one met the standards required of  a  Department
of Defense  polygraph  examination.   The  accuracy  of  the  comments
reportedly made by a  former  OSI  employee  cannot  be  attested  to.
However, the author has no reason to question the  conduct  of  either
polygraph examination, the relevant questions asked, or the results of
the exams as they have been reported.

A copy of the complete evaluation is at Exhibit I.

The Chief,  General  Law  Division,  HQ  USAF/JAG,  asserts  that  the
polygraph issue is a red herring.  It  relates  only  to  the  factual
question of  whether  the  applicant  was  guilty  of  shoplifting---a
question the AFBCMR clearly did not decide. Moreover,  the  answer  to
that question is irrelevant because the applicant was  not  discharged
for shoplifting. Even if the Board were to conclude the applicant  was
innocent, it would still have to find he would have  been  denied  due
process in a nonjudicial punishment  proceeding  or  court-martial  in
order to  grant  relief  under  the  applicant’s  theory.  The  author
indicates polygraph  evidence  may  be  considered  in  administrative
actions, although not treated as dispositive.  The  applicant  invites
the Board to disregard  this  and  establish  a  rule  that  polygraph
results may not be considered even in a matter so far removed  from  a
criminal trial as a commander’s decision to  recommend  retirement  in
lieu of  the  uncertainty  of  serious,  even  criminal,  disciplinary
action. The Board should decline the invitation. If a commander cannot
consider polygraph evidence for that limited purpose, it is  difficult
to conceive of any permissible use whatsoever. Had the  applicant  not
retired but instead defended against the shoplifting allegation  in  a
court-martial, he could have prevented the factfinder from considering
the polygraph  evidence  he  complains  of  today.  In  a  nonjudicial
punishment proceeding, he could not have prevented the commander  from
considering the polygraph results, but he could have  argued  that  in
his particular case they were unreliable. The applicant  has  provided
no evidence to support his claim that he would have  been  denied  due
process in a court-martial because of his grade. The author has little
doubt  that  a  group  of  general  officers  impaneled  to  hear  the
applicant’s trial would expect to see strong evidence for the case  to
have gotten that far. It would have first been reviewed  by  at  least
one investigating officer---probably  a  military  judge---under  UCMJ
Article 32.  Anticipating strong evidence and prejudging the case  are
radically different things, and the author is  unwilling  to  presume,
based on the applicant’s say so, that every panel  member  would  have
done the latter.  As to the reported statistic, the author would  note
that even when one disregards  the  substantial  percentage  of  cases
involving guilty pleas (which  yield  a  100%  conviction  rate),  the
acquittal rate in contested cases is higher than the  applicant  would
have the Board believe. No doubt he felt pressured to retire, but  the
fact remains that he had a choice and he made it voluntarily. Yes,  he
sacrificed the continuation of  his  military  career  and  a  general
officer grade in retirement; but he also eliminated the risk of  being
found guilty and losing much more. A choice is  not  involuntary  just
because it is difficult; indeed, those are the ones in which  volition
is most strongly exercised.  The  reconsideration  request  should  be
denied.

A complete copy of the evaluation is at Exhibit J.

_________________________________________________________________

APPLICANT’S REVIEW OF THE EVALUATIONS:

The applicant reviewed the evaluations and contends the only  evidence
the Air Force had in deciding his guilt or innocence in 1990  was  his
word versus another person’s and a flawed polygraph examination  at  a
time when polygraphs were still admissible in UCMJ decisions. The  Air
Force and the AFBCMR gave inappropriate weight to the infallibility of
polygraphs in deciding on the allegation and his appeal.   The  photos
he provided in  his  latest  submission  clearly  show  that  the  key
polygraph question asked of him could only be answered  “no.”  Had  he
really shoplifted the shorts, he would have had to hide them somewhere
other than up under his shirt.  The Air Force  stance  in  using  this
polygraph result to decide his fate cannot  reasonably  be  judged  as
just. As a general officer, he was part of the  system  and  held  the
same view---that polygraph examination couldn’t be wrong. He therefore
assumed one would exonerate him. Now he  readily  understands  how  he
could be telling the truth and yet “indicate deception”---even if  the
polygraph had been perfectly executed. It is  ludicrous  to  imply  he
retired for any reason other than the Air Force’s insistence  that  he
needed  to  because  of  the  allegation.    The   AF/JAG   statements
substantiate his assertion that the Air Force’s position is not  based
on realities, but on  legal  technicalities  and  posturing  aimed  at
producing a facade. Further, the previous  AFBCMR  did  reference  the
polygraph indications to imply that since he was guilty  no  injustice
was done.  The Air Force gave him only two logical choices:  prove  he
was innocent or retire. Being a general officer adds further  pressure
to conclusively prove innocence in order to be found innocent. There’s
no explanation or comment by AF/JAG as to why  an  Air  Force  general
officer has never been court martialled.  The “system” is  predisposed
to eliminating “problems” or even “the appearance of problems”  rather
than  taking  the  risk   associated   with   their   retention.    He
involuntarily sacrificed his career and in so doing he sacrificed  far
more than that.

The applicant’s complete response is at Exhibit L.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

The applicant appeared before the Board in person and testified  under
oath essentially to the  effect  that  the  previous  Board’s  alleged
reliance  on  polygraph  examinations   was   improper   and   legally
inappropriate; that  his  retirement  was  coerced,  involuntary,  and
ineffective; and that the Air Force knew the charges against him  were
baseless. In this last regard, he stated the Air Force could not  have
proven his guilt, but he nevertheless would have been forced to  prove
his innocence.  He asserts he earned the rank of brigadier general and
requests  he  be  retired  as  such.   After  careful  and  exhaustive
evaluation of all pertinent official  documentation,  the  applicant’s
written presentations and his testimony during the Formal Hearing,  we
conclude that insufficient relevant evidence  has  been  presented  to
demonstrate the existence of probable error  or  injustice  warranting
his retirement in the grade of brigadier general.

First, we wish to state categorically that it  was  not  this  Board’s
burden  to  determine  the  applicant’s  guilt  or  innocence  of  the
shoplifting charge. The applicant retired; he was not  discharged  for
shoplifting and  there  was  no  nonjudicial  or  judicial  punishment
proceeding against him. The original Board also  did  not  decide  his
guilt or  innocence.   Therefore,  since  the  question  of  guilt  or
innocence with respect to this Board’s area of consideration has  been
rendered  irrelevant  by  past  events,  the   applicant’s   arguments
regarding the polygraph examinations and the previous Board’s  alleged
reliance thereon are moot.

Second,  we  acknowledge  the  undoubtedly  difficult  situation   the
applicant was in following the Exchange incident and that its  outcome
has obviously continued to affect him these many  years  later.   This
brings us to the closely related  core  issues  before  us:   Was  the
applicant coerced into  retiring,  thereby  rendering  his  retirement
ineffective, and is it fair and just to retire him  in  the  grade  of
brigadier general?

The available documentation appears to confirm that the applicant  was
advised and encouraged to retire. Given their apparent belief  in  his
guilt, it is understandable, even reasonable, that  senior  Air  Force
leadership preferred to resolve a potentially  embarrassing  situation
in its general officer corps as quietly as possible.  The  applicant’s
superiors no  doubt  sincerely  believed  it  would  be  in  both  the
applicant’s and the Air  Force’s  best  interests  if  he  elected  to
retire. The applicant apparently agreed with them.   Without  question
he was between the proverbial rock and a hard place: either retire  as
a colonel and forfeit the grade of  brigadier  general  or  remain  on
active duty and face the  potential  consequences  of  nonjudicial  or
judicial punishment. However, much of the “pressure” appears  to  have
been self-initiated  and  the  applicant  has  not  provided  evidence
convincing us that his dilemma inherently made his  choice  to  retire
involuntary and the product of duress or coercion. His assertion  that
he would have been denied due process because his grade would  require
his proving his innocence in a court-martial  predisposed  to  convict
him has not been substantiated.  As pointed out  by  the  General  Law
Division Chief, assuming the view was toward a general  court-martial,
the case would first have been reviewed by at least one  investigating
officer under UCMJ Article 32. The polygraph  exams,  the  results  of
which have been a major thrust in the applicant’s appeal,  would  have
been inadmissible and the burden of proof would have rested  with  the
prosecution.  While the trial’s group of general officers  would  have
expected to see strong evidence for the case to have  progressed  that
far, the applicant has not provided persuasive evidence supporting his
assertion that the court members would have prejudged  his  case.  The
bottom line remains that, difficult  though  it  may  have  been,  the
applicant could have turned down the request to retire and  taken  his
chances in the nonjudicial or judicial arena. He chose not to do this.
While senior  Air  Force  leadership  advised  him  to  retire,  their
preferred resolution did not eliminate his options, did not and  would
not have  deprived  him  of  due  process,  and  did  not  render  his
retirement involuntary and ineffective.

As for the second issue, the applicant in actuality was never promoted
to the grade of brigadier general. He was selected for promotion  and,
based on his duties at  the  time,  he  was  “frocked”  to  that  rank
effective 29 September 1989. He did  not  accrue  time  as  a  general
officer which could be applied to retirement as a general officer.  As
a result of his voluntary retirement, which we have already  concluded
was indeed voluntary, he did not satisfy the minimum three years  time
in grade active duty service commitment required for retirement  as  a
brigadier general. Ironically, had he not  retired  on  his  requested
date of 1 April 1990, his promotion to brigadier  general  would  have
been effective on that date. The applicant argues that he  earned  the
rank. However, his  choice  to  retire  rendered  him  ineligible  for
promotion to a general officer no matter how distinguished his  career
may have been. Since he was never promoted to the grade  of  brigadier
general, and we have determined that he was neither forced  to  retire
in the grade of colonel nor unjustly denied the opportunity to contest
a criminal allegation levied against him, we find no compelling  basis
upon which to recommend he  be  retired  in  the  grade  of  brigadier
general.

Finally, on a personal note, we are acutely aware  our  recommendation
to deny the applicant’s appeal will be a severe disappointment to him.
Contrary to what he may believe, we do understand the anguish  he  has
experienced through the years and his deep need for  closure  on  this
issue. For his own peace of mind, we strongly urge him to  accept  the
decision he made in 1990 to retire  in  the  grade  of  colonel---that
while it may be intolerable to him now, it was voluntarily made by him
then.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

The Panel finds  insufficient  evidence  of  error  or  injustice  and
recommends the application be denied.

_________________________________________________________________

The following members of the Board considered this  application  in  a
Formal Hearing on 15 September 1999, under the provisions of  AFI  36-
2603:

                  Mrs. Barbara A. Westgate, Panel Chair
                  Mr. Charles E. Bennett, Member
                  Ms. Patricia J. Zarodkiewicz, Member
                  Ms. Kathy L. Boockholdt, Member
                  Ms. Rita J. Maldonado, Member

Mr. Joseph A. Roj was also present  as  an  Alternate  Member  and  an
observer, but without a vote.

The following documentary evidence was considered:

   Exhibit G.  Record of Proceedings, dated 1 Jul 94, w/atchs.
   Exhibit H.  Letter, Applicant, dated 20 Oct 98, w/atchs.
   Exhibit I.  Letter, HQ AFOSI/XOY, dated 12 Mar 99.
   Exhibit J.  Letter, HQ USAF/JAG, dated 19 Apr 99, w/atchs.
   Exhibit K.  Letter, AFBCMR, dated 26 Apr 99.
   Exhibit L.  Letter, Applicant, dated 20 May 99.
   Exhibit M.  Transcript of Formal Hearing.




                                   BARBARA A. WESTGATE
                                   Panel Chair