RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01559
                 INDEX CODE: 145.04 110.02 108.04
      XXXXXXXXX  COUNSEL:  Fred L. Bauer

      XXXXXXXXX  HEARING DESIRED:  Yes
_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    His 1998 Under-Other-Than-Honorable-Conditions (UOTHC) discharge
be upgraded to Honorable [and the narrative reason changed to  qualify
for Department of Veterans Affairs (DVA) benefits].

2.    He be granted a medical retirement with a disability  rating  of
at least 70%.

3.    Steps be taken to clear his good  name  and  insure  appropriate
medical treatment.

[In his original June 1998 submission, the  applicant  also  requested
the following:

4.    He be promoted to the grade of major, presumably as if  selected
by the Calendar Year 1998A (CY98A) Major Board, which  convened  after
his discharge on 12 January 1998.

5. He be returned to active duty if deemed fit.]
_________________________________________________________________

APPLICANT CONTENDS THAT:

[The applicant originally submitted an appeal dated 1  June  1998.  He
subsequently  retained  counsel,  who  requested  that  the  case   be
withdrawn temporarily. Counsel then submitted an appeal package  dated
6 September 1999.  The contentions contained in  counsel’s  submission
are summarized here.]

The difficulties with his supervisor,  Chaplain  ---,  were  real  and
primarily the fault of the supervisor, who was later fired for a major
breach  of  integrity.   The   allegations   involving   inappropriate
relations  with  two  women  were  false  in  one  case  and  involved
significant mitigation in the other. The applicant was totally unaware
that he was falsely accused by Chaplain Z--- of  violating  women  who
came to him for marriage counseling until he was out of the Air  Force
and received a copy of the OSI report through a March 1998 Freedom  of
Information Act (FOIA) request. He also had no  understanding  of  the
[Military Whistleblowers Protection Act (MWPA)].

It is an oversimplification to call the applicant’s request to  resign
in lieu of court-martial (RILO) a voluntary act. The applicant was  in
extremely poor physical and emotional health, enough  that  a  medical
retirement was seriously considered  and  should  have  been  granted.
Further, the witnesses were lying or exaggerating.  Due  to  advancing
Parkinson’s disease, the applicant’s psychiatric health  and  physical
deterioration are major factors impacting  these  matters.  The  Board
should  carefully  consider  the  stability  of  the  applicant,   his
supervisor,  and  both  women.   The  disability  ratings  from  three
[medical] boards warrant a Formal Hearing so that this Board could see
the extent of the applicant’s incapacitation.

A UOTHC discharge is cruel and unusual punishment for someone with the
applicant’s disabilities and whose misconduct  amounted  to  a  brief,
intimate liaison between a seriously ill priest and a divorced  former
parishioner. His [emotional difficulties] were  not  pre-existing  and
were brought on by active duty stressors.

Both the June 1998 and the September 1999  appeals,  with  attachments
and cassette tape, are provided at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The  following  facts  were  extracted  from  official   documentation
pertinent to the case: the applicant’s military personnel and  medical
records, the AFOSI investigative report, multiple legal reviews, etc.

The applicant entered active duty on 11 August 1988 and was ultimately
promoted to the grade of captain on 3 November 1989. During the period
in question, he was a Catholic chaplain assigned to the    Bombardment
Wing (   BW) at   AFB,   , from approximately 17  January  1993  until
July 1995. Around 1 July 1995, he was assigned to the    Air  Mobility
Wing (   AMW), AMC,  at     AFB,    ,  as  the  Director  of  Catholic
Ministries.

While at    , the applicant allegedly became sexually involved with  a
divorced woman (Ms. ---) sometime around mid-December 1994.   When  he
went TDY to Cuba for a few months [apparently between 10 Apr & 13  Jul
95], she became involved with someone else. This apparently upset  the
applicant and he made some harassing phone calls to her and threatened
to tell her ex-husband that she had admitted to having had  an  affair
while married.  After returning from TDY, he allegedly became involved
with the wife of a retired enlisted member, Mrs. ---.  Before  leaving
for    , the applicant  again  contacted  Ms.  ---,  who  subsequently
reported their relationship to the Bishop of    . The Bishop contacted
the applicant about Ms. ---, whereupon the applicant told her  not  to
speak with the Bishop anymore and threatened to tell  her  ex-husband.
In the meantime, the applicant and Mrs. D---  continued  their  sexual
relationship. About a month later, the applicant told Mrs. --- not  to
call him anymore.  She made contact with  Ms. ---,  who  divulged  her
affair with the applicant and the fact that she had reported  him.   A
few days later, Mrs. --- called the applicant’s supervisor, Chaplain --
-, at the    AMW. Chaplain --- contacted  the     AMW  Judge  Advocate
(JA) and from there an AFOSI investigation ensued. When the  applicant
became aware he was under investigation, he  asked  Mrs.  ---  not  to
admit to the affair. She relayed this request to the AFOSI. The  AFOSI
investigation was conducted from 20 May 1996 to 24 April 1997.

The  AFOSI  report  also  indicates  that  HQ  USAF/HCX  conducted   a
regulation review on 24  October  1996.  Air  Force  Policy  Directive
(AFPD) 52-1, Chaplain Service, 7 September 1993, applied. The AFPD was
implemented by  AFI  52-101,  Chaplain  Service  Responsibilities  and
Procedures,  22  November  1994.   Paragraph  (a).1.5.  of  the   AFPD
stipulates, in part,  that  “.  .  .  chaplains  will  adhere  to  the
requirements of their endorsing religious bodies.”  Also cited was the
Code of  Canon  Law,  published  by  Canon  Law  Society  of  America,
Washington, DC, 28 January 1983, for Catholic clergymen.

In the meantime, an Informal  Physical  Evaluation  Board  (IPEB)  had
convened on 26 June 1996. The IPEB  determined  that  the  applicant’s
depressive  disorder  (not  otherwise   specified,   associated   with
adjustment disorder with mixed  anxiety  and  depressed  mood,  severe
impairment in obtaining or  retaining  employment)  was  an  unfitting
condition  which  was  compensable  and  ratable  at  70%.  The   IPEB
recommended the  applicant  be  placed  on  the  Temporary  Disability
Retirement List (TDRL).

A 6 August 1996 consultation by a Parkinson’s Disease civilian  clinic
indicated that the applicant’s history developed over a  year  before.
The applicant was found mentally intact,  with  some  difficulty  with
memory and no obvious impairment of his cognitive functioning. He  had
typical features of Parkinson’s, particularly on the right  side,  and
his balance was slightly off. The impression was  that  he  had  early
unilateral Parkinson’s Disease and depression.

A 12 September 1996 rating from the  Department  of  Veterans  Affairs
(DVA) assigned him a 20% for Parkinson’s.

On 15 November 1996, court-martial (CM) charges were preferred against
the  applicant,  alleging  sodomy,  assault,  conduct  unbecoming   an
officer, adultery, and obstructing justice.

A 15 November 1996 Charge Sheet, DD Form 458,  with  two  attachments,
reflects  the  original   and   subsequently   deleted   charges   and
specifications against the applicant. An Article 32 investigation  was
conducted in December  1996.  The  applicant  made  no  statement  and
presented  no  evidence  during  the  investigation.  The  Article  32
investigating  officer  (IO)  concluded  that  there  was   sufficient
evidence to proceed to trial and recommended the case be so  referred.
However, the IO recommended some of the charges and specifications  be
dropped because they mirrored other charges  and  specifications.  The
final charges and specifications were:

      Charge I. – Violation of the UCMJ, Article 133
      Specification 1: On or about 15 and 31 July 1995, the  applicant
wrongfully had sexual intercourse with Mrs. ---.
      Specification 2: Between, on or about 1 and 15 November 1995, he
wrongfully had sexual intercourse with Mrs. ---.
      Specification 3: On or about  11  November  1995,  he  committed
sodomy with Mrs. ---.
      Specification 4: On or about 15  December  1994  and  15  August
1995, he wrongfully had sexual intercourse and committed  sodomy  with
Ms. ---, and unlawfully grabbed her face with his hands and kissed her
on the lips without her consent.
      Specification 5: On or about 30 May and 15 July 1995, telephoned
Ms. ---, cursed her, and referred to her as a slut and  a  whore,  and
wrongfully communicated by letter to her curses and a threat to injure
her reputation by threatening to tell  her  ex-husband  that  she  had
committed adultery.
      Specification 6: On or about  15  August  and  15  October  1995
wrongfully communicated by telephone to Ms. --- a threat to inure  her
reputation  by  threatening  to  tell  her  ex-husband  that  she  had
committed adultery.

      Charge II. – Violation of the UCMJ, Article 134
      Specification 1: On or about  9  June  1996,  he  endeavored  to
impede an investigation by asking Ms. --- not  to  tell  AFOSI  agents
that she had had sexual intercourse with  him  when  questioned  about
their relationship.

The    Air Force (   AF) commander referred the  two  charges  to  CM.
The applicant subsequently tendered his request  for  RILO.  His  Area
Defense Counsel (ADC) submitted a supporting memorandum. On 15 January
1997, a military judge ordered a Sanity Board be convened to conduct a
mental examination of the applicant in accordance  with  Rule  for  CM
706, Manual for CM. The judge issued the  order  based  on  the  ADC’s
support memo, which expressed concern about the applicant’s ability to
assist in his defense at  trial.  On  21  January  1997,  the      AMW
commander recommended the RILO request be denied and, if accepted, the
applicant be given a UOTHC discharge. On 23 January 1997,  the  21  AF
commander concurred with those recommendations.

A 21  February  1997  Narrative  Summary  from  the     Medical  Group
indicated that, although cognitive deficits are common in  Parkinson’s
Disease, the applicant did not have risk factors for  developing  this
at the stage of his illness.

On 20 March 1997, the Secretary of the Air Force  (SAF)  accepted  the
applicant’s resignation contrary to all recommendations from his chain
of command. However, the UOTHC discharge was held in abeyance  pending
the outcome of disability evaluations that he was undergoing  pursuant
to dual-action procedures of AFI 36-3212.

The      Medical Center/Neurology provided a diagnosis of  Parkinson’s
Disease on 7  August  1997  and  found  the  applicant  not  worldwide
qualified. Prognosis was for continued deterioration over the years.

An IPEB convened on 2 October  1997  and  determined  that  his  major
depressive disorder, not otherwise specified, considerable social  and
industrial adaptability impairment associated with  early  Parkinson’s
Disease was an unfitting condition compensable  and  ratable  at  50%.
Recommendation was that he be placed on the TDRL.

On 4 November 1997, a Formal PEB (FPEB) convened and  determined  that
the applicant’s major depressive disorder, mild social and  industrial
adaptability impairment,  was  a  compensable  and  ratable  unfitting
condition, but that the early  Parkinson’s  Disease  with  only  mild,
stable symptoms was not a compensable/ratable unfitting condition. The
recommendation was discharge with  a  disability  rating  of  10%  and
severance pay.

The applicant was admitted to  the              Army  Medical  Center,
Department of Psychiatry on 26 November 1997 and discharged from there
on 20 November 1997.  The  report  of  that  admission  indicates  the
symptoms,  which  resulted  in  the  applicant  receiving  a   cardiac
catheterization, were found not  to  be  cardiac  in  origin  per  the
cardiology  report.  The  applicant’s  psychological   condition   was
exacerbated by  his  perceptions  of  the  command  and  their  direct
involvement in his future and the reduction of benefits from the  PEB.
According to the report, a Sanity Board was convened in February  1997
to address legal issues and  the  applicant  was  found  competent  to
address his legal issues. The report advises that  the  applicant  was
considered fully competent to handle his own affairs but was unable to
return to full duty. Diagnoses were delusional  disorder,  persecutory
type; panic disorder without  agoraphobia;  major  depression  without
psychotic  features,  single  episode,  recurrent;  and  early   onset
Parkinson’s Disease.

The case was forwarded to the SAFPC for dual-action  consideration  on
22 December 1997. SAFPC found the evidence did not establish that  the
applicant had a  major  depressive  disorder  prior  to  his  criminal
offenses and concluded that his misconduct was  not  caused  by  major
depression or any similar medical problem. The applicant  appeared  to
suffer  from  situational  depression  as  a  result  of  his   ending
disciplinary case. On 29 December  1997,  SAFPC  determined  that  the
applicant’s misconduct merited worse than an honorable  discharge  and
voted to approve the UOTHC discharge under the provisions of  AFI  36-
3207.

The  applicant  was  discharged  with  a  UOTHC  discharge   effective
10 January 1998, resignation for the good of the service in lieu of CM
for other offense, after 9 years, 4 months and 29 days of active duty.

Following a telephone inquiry from the AFBCMR Staff,  counsel  advised
that the applicant has a claim before the DVA but does  not  currently
have  a  disability  rating.  Further,  as  indicated   in   counsel’s
26 November 1999 letter (Exhibit L) and the  DVA  Extract  of  38  CFR
3.12, the applicant is ineligible for payment of DVA benefits  due  to
the characterization and reason for his discharge.
_________________________________________________________________

AIR FORCE EVALUATION:

The AFBCMR Medical Consultant indicates that,  while  the  applicant’s
supervisor may not have had great leadership qualities, the  applicant
does not provide any convincing evidence that the allegations  of  his
own misdeeds were false. Ample evidence was collected during  the  OSI
investigation to warrant proceeding with CM and the acceptance of  the
applicant’s resignation saved him from an  almost  certain  conviction
and felony record. Full consideration was given to the lone  unfitting
medical condition (depression) suffered by the applicant  through  the
course of his  disability  evaluation  and  the  proper  decision  was
reached in the SAFPC action. No error  or  irregularity  occurred  and
denial is recommended.

A copy of the complete evaluation is at Exhibit C.

The Chief, Special Actions/BCMR Advisories, HQ AFPC/DPPD, advises that
a thorough review of the file revealed no errors or irregularities  in
the  processing  of  the  applicant’s  case  within   the   disability
evaluation system. He was appropriately found unfit and properly rated
under federal disability rating guidelines.  The  SAF  terminated  the
disability case and directed his involuntary administrative  discharge
for misconduct. The Chief  agrees  with  the  Medical  Consultant  and
recommends denial.

A copy of the complete evaluation is at Exhibit D.

The  Chief,  Promotion,  Evaluation  and  Recognition   Division,   HQ
AFPC/DPPP, also evaluated the appeal with regard to the  promotion  to
major issue. The Chief recommends that both direct promotion to  major
and SSB consideration for the CY92A board be denied.

A copy of the complete evaluation is at Exhibit E.

The Military Personnel Management Specialist, Separations  Branch,  HQ
AFPC/DPPRS, advises there are no errors or irregularities  causing  an
injustice to the applicant. The discharge complies with directives  in
effect at the time of his discharge.  He resigned in lieu of CM action
for other  offense.  He  did  not  identify  specific  errors  in  the
discharge processing nor provide facts that warrant setting aside  his
UOTHC  discharge  or  returning  him  to  active   duty.   Denial   is
recommended.

A copy of the complete evaluation is at Exhibit F.

The Staff Judge Advocate, HQ AFPC/JA, reviewed the  appeal  and  notes
that the ADC was the only person who supported applicant’s request  to
RILO. The legal office, the wing commander,  the  numbered  Air  Force
commander and the deputy Staff JA (SJA) for Air Mobility  Command  all
recommended disapproval of  the  request  and  trial  by  general  CM.
Notwithstanding these recommendations,  the  applicant’s  request  was
accepted by the SAFPC.  Also, the FPEB believed that  the  early-onset
Parkinson’s did not render the applicant unfit for  military  service;
therefore, no award  was  made  for  it.  The  SAFPC  found  that  the
depression was not the cause  of  the  misconduct  for  which  the  CM
charges were pending  but  was,  rather,  a  result  of  the  charges;
therefore, medical  discharge  was  not  appropriate.  In  making  his
request for relief, the applicant asks  the  Board  to  allow  him  to
litigate the very claims he sought to avoid by his tender of  a  RILO.
His  voluntary  request  for  resignation  was  tendered  in  lieu  of
prosecution of legitimate, perfectly legal  and  appropriate  criminal
charges and was accepted by the SAF in good  faith.  In  the  author’s
view, the purpose of the corrections process is not to facilitate  the
circumvention of the process established  by  law  to  adjudicate  and
resolve criminal allegations. The author  discusses  the  MWPA  issue,
indicating that,  in  this  case,  there  does  not  appear  to  be  a
retaliatory personnel action.  The  accusations  leveled  against  the
senior chaplain were that he provided false information  to  the  OSI.
Even if the accusations are true and they were  done  in  retaliation,
this  is  not  a  personnel  action.  Neither  is  there  a  protected
communication  as  required  to  establish  a  prima  facie  case  for
whistleblower  protection.  The  communication  referred  to  by   the
applicant was a complaint to the wing commander, who does not fit into
any of the categories of entity to whom a communication made would  be
protected.  All procedures followed in this case were appropriate  and
were accomplished pursuant to applicable AFIs.  No  injustice  to  the
applicant is apparent  from  the  record.  The  author  recommends  an
affirmative finding by the Board that the applicant was  not  deprived
of whistleblower protection and that his requests for relief be denied
in their entirety.

A copy of the complete evaluation is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the advisories were forwarded to the applicant  on  22 March
1999 for review and comment within 30 days.  In the interim,  however,
the applicant had retained counsel who, on  16 March  1999,  requested
that the case be temporarily withdrawn.  The AFBCMR Staff granted this
request on 23 March 1999.  Counsel then  submitted  the  DD  Form  149
dated 6 September 1999 (see Exhibit A).   To  date,  this  office  has
received no further comments/documents from either  the  applicant  or
counsel.
_________________________________________________________________

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 any corrective action  is  warranted.  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 evidence contained in  the  OSI  investigation  or  the  rationale
provided by the Air  Force,  particularly  that  of  the  Staff  Judge
Advocate. We therefore agree with the recommendations of the Air Force
and adopt the rationale expressed as the basis for our  decision  that
the applicant has failed to sustain  his  burden  of  having  suffered
either an error or an injustice. In  view  of  the  above  and  absent
persuasive evidence to the contrary, we find no  compelling  basis  to
recommend granting any of the relief sought.

4.    Based on a legal determination, we  are  aware  that  since  the
applicant has alleged reprisal under the provisions  of  the  Military
Whistleblower  Protection  Act,  this  case  must  be  considered  and
resolved within 180 days of its receipt by the Secretary  of  the  Air
Force regardless of any Inspector General findings. In this case,  the
toll began after the appeal had  been  withdrawn  and  resubmitted  by
counsel in March 1999 and September 1999, respectively. However, after
carefully reviewing all the documentation  pertinent  to  this  appeal
(including the two DD Form 149 packages, the applicant’s military  and
medical records, the advisory opinions, and  the  OSI  investigation),
this Board is not convinced retaliatory personnel actions  were  taken
against  the  applicant  in  reprisal  for  complaints   against   his
supervisor. Neither the applicant nor counsel has provided  convincing
evidence that the applicant made a protected disclosure  or  that  his
UOTHC discharge was the result  of  reprisal.  Since  the  applicant’s
allegations of reprisal have not been substantiated, it  would  appear
that his case should not be treated under provisions of  the  Military
Whistleblower Protection Act. Accordingly, this Board determined there
was no reprisal, and the applicant’s case was considered as any  other
application, as provided by Title 10, USC, Section 1552; however,  the
review was conducted within the 180 day time limit.

5.    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 legal 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 14 December 1999, under the provisions of AFI 36-
2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Ms. Patricia D. Vestal, Member
                  Ms. Melinda J. Loftin, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149s (2), dated 1 Jun 98 & 6 Sep 99,
                     w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFBCMR Medical Consultant, dated 8 Dec 98.
      Exhibit D. Letter, HQ AFPC/DPPD, dated 9 Feb 99.
      Exhibit E. Letter, HQ AFPC/DPPP, 11 Feb 99.
      Exhibit F. Letter, HQ AFPC/DPPRS, 16 Feb 99.
      Exhibit G. Letter, HQ AFPC/JA, dated 9 Mar 99.
      Exhibit H. Letter, AFBCMR, dated 22 Mar 99.
      Exhibit I. Applicant’s Letter retaining counsel,
                       dated 6 Mar 99.
      Exhibit J. Counsel’s Letter temporarily withdrawing case,
                       dated 15 Mar 99.
      Exhibit K. AFBCMR Letter temporarily closing case,
                       dated 23 Mar 99.
      Exhibit L. Counsel’s Letter, dated 26 Nov 99, w/atch.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair