RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  98-00925
                             INDEX CODE: 135.02, 135.03

                             COUNSEL:  None

                             HEARING DESIRED:  Yes



_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He be returned to the ready Reserve in the position as  Superintendent
of the Pararescue Section, or a comparable position  in  terms  of  pay  and
grade.

2.    He be granted back-pay, allowances, and participation  points  from  1
May 1993, the date he was denied  participation  in  the  Reserves,  to  the
present.

3.    He be granted back-pay from the civilian position he has  been  denied
since 26 May 1995.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His involuntary transfer to the standby Reserve was  unjust  for  four  main
reasons.  First, the adverse personnel action was  contrary  to  the  intent
and provisions  of  AFI  36-2115.   Second,  the  939  RQW/CC  used  alleged
misconduct from a prior enlistment as evidence that he failed  to  meet  Air
Force military  standards  in  the  adverse  personnel  action.   Third,  in
examining the two remaining incidents that  allegedly  occurred  during  the
current  enlistment,  he  was  not  in  a  military  status.   Fourth,   the
conclusion that the AFRES/CC’s decision to reassign him was  proper  because
it was based on his failure to meet military standards although he  met  Air
Force standards is ludicrous.  There is no  precedent  for  any  distinction
between Air Force and military standards.  The adverse personnel action  was
contrary to the intent and provisions of  AFI  36-2115.   AFI  36-2115  sets
forth the requirements for involuntary reassignment to the standby  Reserve.
 The 939 RQW/CC  failed  to  follow  the  fundamental  requirements  of  the
instruction.  No alternative actions were attempted.  He was  not  counseled
during  the  entire  period  of  alleged   misconduct   and   mismanagement.
Therefore,  of  course,  there  is  no  documented  record  of   counseling.
Furthermore, he was  not  reprimanded  until  after  the  first  involuntary
reassignment was initiated.  The only administrative  action  taken  was  an
attempt to deny him reenlistment.  He appealed  the  decision  to  deny  his
reenlistment.  A board of three  officers  concluded  that  the  allegations
against him were not substantiated.  The attempt to distinguish between  Air
Force standards and military standards and the insinuation  that  Air  Force
standards are lower than  military  standards  cannot  be  taken  seriously.
Because there is no distinction between Air Force  and  military  standards,
the decision to transfer him must be reversed.  For the  foregoing  reasons,
he respectfully requests that the decision to transfer him  to  the  standby
Reserve be reversed.  Any one of the  above  reasons  standing  alone  would
require the reversal of his transfer.  However, together these reasons  make
reversing the AFRES/CC decision essential  to  ensure  fundamental  fairness
and preserve the integrity of the Air Force.

In support of  the  appeal,  applicant  submits  his  appeal  of  the  Board
Findings, dated 30 December 1993; Letter of Notification, dated  4  November
1994; Memorandum/Recommendation for Involuntary Reassignment to the  standby
Reserve, dated 13 January  1995;  Letter  from  General  Fogleman,  dated  2
September 1996; and Response by attorney, dated 4 May 1995, w/atchs.

Applicant's complete submission is attached at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 17 September 1965, the applicant enlisted in the Regular Air Force for  a
period of 4 years.  On 10 January 1969,  he  was  honorably  discharged  and
transferred to the Air Force Reserves (AFRes).   He  served  a  total  of  3
years, 3 months, and 24 days of active duty.

On 1 July 1980, the applicant was promoted to the  Reserve  grade  of  chief
master sergeant (CMSgt).

On 11 August 1988, the applicant applied for a Ready Reserve assignment.

On 12  September  1988,  the  applicant  was  assigned  as  an  Air  Reserve
Technician (ART) and Superintendent of the Pararescue  (PJ)  Section,  304th
Rescue  Squadron  (RQS),  AFRes,  Portland  International   Airport   (IAP),
Portland, OR.

On  19  August  1992,  the  applicant  was  recommended  and  selected   for
reenlistment in the grade of CMSgt.

On 30 January 1993, during a night-time High Altitude,  Low  Opening  (HALO)
free-fall jump, a member of the 304th RQS landed downwind,  outside  of  the
designated drop zone in a freshly cut  wooded  area  and  collided  headlong
into a pile of logs.  He was
rendered a quadriplegic and  later  died  of  his  injuries.   A  subsequent
ground  mishap  investigation  revealed  that  the  injured  pararescue  was
unqualified to jump  on  the  evening  in  question  and  an  audit  of  all
pararescue records revealed that only 20 of  the  41  PJs  assigned  to  the
section  were  current  with  their  jump  requirements.   Based  on   these
findings, the applicant was removed as superintendent of the PJ Section.

On 1 May 1993, the applicant was  not  recommended  for  reenlistment.   The
applicant appealed the decision  to  deny  his  reenlistment  and  the  non-
recommendation was presented to an Appeals Board.

On 30 December 1993, the Appeals Board recommended  the  applicant’s  appeal
be approved.

On 12 September 1994, the applicant reenlisted in the AFRes for a period  of
6 years in the grade CMSgt.

On 4  November  1994,  the  applicant  was  notified  of  the  939  RQW/CC’s
recommendation for his involuntary reassignment to the  standby  Reserve  in
accordance with AFI 36-2115.  The basis for  his  proposed  action  was  the
applicant failed to meet Air Force standards and  that  he  failed  to  meet
military conduct standards.  The specific reasons for  the  proposed  action
were:

      a.    On or about 26 October 1994, the applicant was  reprimanded  for
being drunk and disorderly on station during September 1994,  and  again  on
20 October 1994.   Both  incidents  occurred  while  the  applicant  was  in
civilian status, at the Columbia Pointe Club at Portland  IAP,  OR,  in  the
presence of a  junior  noncommissioned  officer  (NCO)  and  a  female  club
employee.  During the September 1994 incident he became angry  and  broke  a
glass; during the October 1994 incident he urinated in the bar area  into  a
beer glass.

      b.    On or about 29 April 1993, while on station, in civilian  status
as an ART supervisor, and while in the presence of a junior enlisted  person
in his section, the applicant made the following  statements  regarding  the
commander of the 939 RQW: “I’ve got a bullet with T---’s name  on  it...I’ve
had it for over a year...I just (can’t) roll over....”

      c.    On or about 21 July 1993, while on station in  civilian  status,
the applicant made a written statement to the 939 RQW/CC  that  he  was  “to
blame” for various management shortcomings  identified  in  the  section  he
(applicant) had supervised, that he was “running a kangaroo court” and  that
command was “beyond the leadership capability of a navigator”  and  that  he
had “established a new floor in military leadership.”

      d.    On or about 3 June 1992, the applicant  violated  AFR  30-30  by
using five pararescue technicians, four of which were then  on  active  duty
and another who was in civilian ART status to help him  move  his  household
goods during duty hours.

      e.    On 6  and  8  June  1992,  the  applicant  was  reprimanded  for
negligently maintaining time cards for civilian employees in the section  he
managed, for  negligently  failing  to  report  injuries  sustained  in  the
performance of duty, and for negligently allowing a member  of  his  section
to be away without appropriate leave.

      f.    The  applicant  failed  to  adequate  supervise  the  day-to-day
operations of the pararescue section,  as  evidenced  by  the  discrepancies
identified in various audit reports created during May 1993.

On 4 November 1994, the applicant acknowledged  receipt  of  the  letter  of
notification.

On 23 March 1995,  the  applicant  was  notified  of  his  Proposed  Removal
(disqualified from ART).  One of  the  requirements  to  be  an  ART  is  to
maintain status in the active Reserve.

On 7 April 1995, the applicant was involuntarily reassigned to the  inactive
Reserve for failure to meet military conduct standards.

On 26 May 1995, the applicant was  terminated  from  his  ART  position  and
Federal service.

On 7 September 1995, the applicant’s appeal to the Merit Systems  Protection
Board was dismissed.

EPR profile since 1992 reflects the following:

      PERIOD ENDING                    EVALUATION OF POTENTIAL

            23 Feb 92        5 (Rater)
                                  4 (Rater’s Rater)

_________________________________________________________________

AIR FORCE EVALUATION:

The Staff Judge Advocate, HQ AFRC/JA, reviewed this application  and  states
that the claim for  relief  in  the  form  of  back  pay  for  his  civilian
employment is not addressed due to the fact  the  Merit  Systems  Protection
Board has already dismissed that claim, and it  is  not  a  properly  placed
request.  In his first argument, the applicant asserts that his transfer  to
the standby Reserve was contrary to the intent and  provisions  of  AFI  36-
2115.  The applicant attempts to cite the first provision of  Chapter  4  of
AFI 36-2115, disallowing involuntary transfer without first  exhausting  all
administrative and disciplinary actions, in
support of his argument.  However, he failed to  include  language  allowing
involuntary  transfer   to   the   standby   Reserve,   without   exhausting
administrative and disciplinary actions.  The AFI goes  on  from  where  the
applicant left off to state, “Consider exceptions to  these  policies  on  a
case-by-case basis.  HQ AFRC/DP must consider the best interests of the  Air
Force before granting waivers to any of these policies.”   In  other  words,
if the best interests of  the  Air  Force  are  served  by  transferring  an
individual to the standby Reserve for cause, before exhaustion of all  other
administrative and disciplinary actions, the involuntary  transfer  can  and
should occur.  The  applicant’s  actions  and  misconduct  discovered  as  a
result of the death of one of his subordinates,  as  enumerated  in  various
reports, investigations, and memorandums, clearly  indicate  that  the  best
interests of the Air Force would be served by  transferring  the  applicant.
In further support of his argument that  the  involuntary  transfer  to  the
standby Reserve was unjust, the applicant sets out  facts  which,  on  their
face, appear to warrant  relief.   However,  when  examined  closely,  these
facts are half-truths, shaded to fit his scenario of perceived abuse of  the
system.  For example, the applicant states the “IG concluded that there  was
a  ‘lack  of  procedural  compliance  by  HQ  AFRES  during  the  course  of
processing his involuntary transfer to the  inactive  reserves’.”   However,
the reference  made  by  the  Chief  is  simply  to  the  IG  restating  the
allegation as framed in the original complaint.  The IG summary goes  on  to
state that “[T]he transfer of the applicant  to  the  inactive  Reserve  was
found to be appropriate  and  in  accordance  with  governing  regulations.”
Both reasons cited for claiming the transfer  to  the  standby  Reserve  was
unjust are not grounded in fact nor in the  instructions  purporting  to  be
cited by the applicant.  Secondly, the applicant alleges his  commander  did
not have the legal right to  use  misconduct  from  a  prior  enlistment  to
support the involuntary transfer to the standby Reserve.  The  applicant  is
combining two different instructions to arrive at  the  result  he  desires.
While it is true that AFI 36-3209 does not allow  misconduct  from  a  prior
enlistment to be used as a  basis  for  discharge,  it  does  not  speak  to
involuntary transfers to the standby Reserve.  That  procedure  is  governed
by AFI  36-2115,  which  is  silent  on  whether  misconduct  from  a  prior
enlistment can be used as a basis for involuntary transfer.  The IG  summary
puts forth the proposition  that  the  same  rule  should  be  followed  for
involuntary  transfers,  but  there  is  no  legal  support   for   such   a
proposition.  Furthermore,  AFIs  should  be  followed  by  their  terms  as
written, until such time that interim changes  are  announced.   Third,  the
applicant claims that because he was not in a military status  at  the  time
of his alleged misconduct, that misconduct cannot serve as a basis  for  his
involuntary transfer to  the  standby  Reserve.   The  applicant’s  argument
assumes his involuntary transfer was
based solely on two incidents  of  misconduct  occurring  at  the  all-ranks
club.  However, as stated above, there is no requirement that reviewing  and
decision authorities consider only those acts  of  misconduct  occurring  in
the current enlistment.  His commanders were entitled to consider all  facts
arising out of the many investigations into the actions  of  the  applicant.
He was found to have carried on an open and notorious affair with  a  member
of the Security Forces, he failed  to  comply  with  standards  of  military
bearing, he was routinely disrespectful, drunk, and disorderly,  and  was  a
causal factor of  the  death  of  one  of  his  subordinates.   Under  these
circumstances, it was clearly in the best  interest  of  the  Air  Force  to
transfer the applicant  to  the  standby  Reserve.   Fourth,  the  applicant
claims that because there is no distinction between  “Air  Force  standards”
and “military standards” the decision to  transfer  him  must  be  reversed.
Although the logic of the argument is not  apparent,  there  is  in  fact  a
distinction between “Air Force standards” and “military standards” found  in
AFI 36-2115, Table 5.1, Rules 19 and 22.  If the  applicant’s  complaint  is
alleging it was improper for reviewing authorities  to  distinguish  between
the two,  and  therefore,  the  basis  for  the  decision  to  involuntarily
transfer him to the standby Reserve was based on an  erroneous  distinction,
this complaint must  fail.   Such  a  distinction  does  exist,  and  either
failure  to  meet  “military  standards”  or  failure  to  meet  “Air  Force
standards” can serve as a basis for  the  involuntary  transfer.   Balancing
the equities in the case can only lead to the conclusion that the  applicant
was properly transferred to the standby Reserve.  He  was  able  to  subvert
authority for quite some time, and to his benefit, most of his  conduct  was
not discovered until late in his career.  This accounts for delays cited  by
the applicant as “unjust;” however, the further  investigators  looked  into
his misconduct, the more  there  was  to  investigate.   The  applicant  has
repeatedly performed below standards required of Air Force members,  causing
bodily harm to at least  one  member  of  his  squadron.   Furthermore,  his
documented off-duty behavior can only be described as  service-discrediting.
 While it is  true  that  no  person  ordered  the  applicant  into  alcohol
counseling,  it  is  also  true  that   the   applicant   never   took   any
responsibility  for  his  own  treatment  or  recovery.   The  decision   to
involuntarily transfer the applicant into the standby Reserve was  found  to
be proper by two  separate  commanders,  and  the  Inspector  General.   The
reasons cited in support of reversing this decision are not  supportable  in
the law, in equity, or in fact.  Furthermore, when the  applicant’s  actions
are measured against the best interest of the Air Force,  it  becomes  clear
that his transfer was proper.  Under these circumstances,  the  decision  to
involuntarily transfer the applicant into the standby Reserve should not  be
reversed, and the relief requested should be denied.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and states that the  involuntary
transfer requires a  waiver  unless  “all  appropriate  disciplinary  and/or
administrative  actions  have  been  taken  and  documented.”   The  obvious
administrative  actions  that  should  have  been  considered  include  oral
counseling, a referral to social actions, or a denial of  reenlistment.   Of
these three potential actions, the 939 RQW/CC attempted the  most  punitive,
a denial of reenlistment, on 7 September 1993.  Contrary  to  the  AFI,  the
involuntary reassignment was not used as a last resort.   Instead,  the  939
RQW/CC used the involuntary transfer as the first option.  Despite the  fact
that all other disciplinary and/or administrative actions  are  required  to
be taken and documented, no other options  were  even  considered.   Because
the regulation states that a waiver is required and  the  waiver  was  never
requested nor received from  the  waiver  authority  the  adverse  personnel
action must be reversed.  The reason that AFI  36-2115  requires  all  other
remedies be pursued first, and involuntary reassignment is used  only  as  a
last resort is the protection afforded the member visa vis the  due  process
requirements of a denial of reenlistment or  a  court-martial.   The  reason
that the 939 RQW/CC never pursued a  second  denial  of  reenlistment  or  a
court-martial is because there is no evidence sufficient to  support  either
of those actions and the commander knew it.  Because the commander  did  not
exercise  other  available  options  before  resorting  to  the  involuntary
reassignment, the reassignment must be reversed.  Even if, for the  sake  of
argument,  that  all  alleged  misconduct  from  his   entire   career   was
reviewable, he would have to have been in military status  at  the  time  of
every alleged misconduct.  Since he was not on active  duty  during  any  of
the periods of alleged misconduct, the  appropriate  disciplinary  agent  is
his civilian supervisor.  The  civilian  supervisor  could  have  taken  any
appropriate civilian  action.   AFRC/JA  states  that  there  were  “...many
investigations  into  the  actions  of  [applicant].”   In  fact,   he   was
investigated twice: one was an Article  32  investigation  and  one  was  an
investigation the IG determined was illegal.  AFRC/JA then  states  that  he
(applicant) “carried on an open and notorious  affair  with  member  of  the
security forces....”  In fact, he was  separated,  then  divorced  from  his
former spouse, and was married 3 September  1993  to  the  woman  with  whom
AFRC/JA states he was having an affair.  His military  record  reveals  that
he is a highly decorated NCO who achieved the  highest  enlisted  rank,  and
earned all “9s” on every one of his Airman Performance Reports (APRs),  with
the exception of one “8” in 1991.  He was also the Senior  Enlisted  Advisor
to two different commands and nominated to become the Chief Master  Sergeant
of the Air Force Reserve.  AFRC/JA states that he was a “causal  factor”  in
the death of one of his subordinates.  This highly  inflammatory  allegation
has no basis in fact and stands in stark contrast to the findings of the
Accident Investigation Board.  He was  not  on  duty  as  a  civilian  or  a
military member.  He warned Colonel T---  that  he  needed  to  devote  more
resources to training  pararescuemen  or  risk  them  becoming  non-current.
Colonel  T---  did  nothing  to  alleviate  the  increasing  problem  of  PJ
proficiency  despite  his  warnings.    The   findings   of   the   Accident
Investigation Board point to Colonel T--- as culpable, not him  (applicant).
 AFI 36-3115 simply states  the  failure  to  meet  Air  Force  or  military
standards can be a basis for discharge.  The use of the word  “or”  in  this
context is meant to explain that they are interchangeable,  not  that  there
is a distinction.

Applicant's complete response, with attachment, is attached at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Board requested the Letter of Notification for Involuntary  Reassignment
to the Standby Reserve, dated 4 November 1994, with the 15  attachments,  be
obtained and the entire application be forwarded to the Chief,  General  Law
Division, Office of the Judge Advocate General, HQ USAF/JAG, for review  and
comment.   The  applicant  provided  the  requested  documentation  and  the
application was forwarded to USAF/JAG as the Board requested.   HQ  USAF/JAG
states that Air Force policy permits the use of prior enlistment  misconduct
as a basis for involuntary transfer to  the  standby  Reserve;  the  AFI  in
effect when applicant’s transfer action occurred did not  require  a  waiver
from  AFRC/DP;  and  non-duty  status  misconduct,  that  has   a   military
connection, may be used as a basis for involuntary transfer to  the  standby
Reserve.

A complete copy of the evaluation is attached at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reviewed  the  Air  Force  evaluation  and  provides  detailed
comments.  In short he states that he stands on his arguments set  forth  in
his original memorandum.  Moreover, he argues that it  is  contrary  to  Air
Force policy and common  sense  to  use  alleged  misconduct  from  a  prior
enlistment in an involuntary transfer.

Applicant's complete response, with attachments, is attached at Exhibit G.

_________________________________________________________________

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.  Applicant’s contentions are  duly
noted; however, we find  no  evidence  of  error  in  this  case  and  after
thoroughly reviewing the documentation that has been  submitted  in  support
of applicant’s appeal, we do not believe he has suffered from an  injustice.
  In  the  absence  of  evidence  showing  that  the  commander  abused  his
discretionary authority, we find  no  basis  upon  which  to  recommend  the
relief requested  be  granted.   Applicant’s  contentions  are  duly  noted.
However, in our opinion, they have been  adequately  addressed  by  the  Air
Force and we adopt its rationale as the basis for our  conclusion  that  the
applicant has not been the victim of an error or injustice.   Therefore,  in
the absence of substantial evidence to the contrary, we find  no  compelling
basis to recommend granting the relief sought in this application.

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 issue(s) 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.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 16 February 1999 and 2 September 1999, under  the  provisions  of
AFI 36-2603:

      Ms. Charlene M. Bradley, Panel Chair
      Mr. Mike Novel, Member
      Mr. Philip Sheuerman, Member
      Ms. Gloria J. Williams, Examiner (without vote)

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 2 Apr 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFRC/JA, dated 23 Jul 98.
      Exhibit D. Applicant’s Response, undated, w/atchs.
      Exhibit E. Letter, HQ USAF/JAG, dated 3 Jun 99.
      Exhibit F. Letters, AFBCMR, dated 31 Aug 98 and 9 Jun 99.
      Exhibit G. Applicant’s Response, 8 Aug 99 w/atchs.




                             CHARLENE M. BRADLEY
                             Panel Chair