RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: BC-2001-00143

            COUNSEL:  FRED L. BAUER

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    He be allowed to continue  his  reserve  and  Wage  Grade  11  (WG-11)
duties.

2.    He be given full credit for time and pay since  the  incident;  or  at
least since 26 November 1996, when he was placed on administrative leave.

3.    He be retroactively promoted to the grades of technical  sergeant  and
master sergeant, which he would reasonably have obtained  had  he  not  been
barred.

4.    The letter, dated 12  December  1996,  barring  him  from  Kelly  AFB,
Texas, be set aside and order that it not be  reinstated  absent  misconduct
on the part of the applicant.

5.    He be made “whole” in every way had his only penalty been his  Article
15 and the reduction in grade.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

In essence, the punishment he received for his inappropriate comments  on  2
November 1996 was too severe.

The applicant’s counsel states that in September 1996 five workers at  Kelly
AFB placed small disposable aircraft pillowcases over their heads and  drove
down the flight line in a maintenance van.  Two African-American men on  the
flight line took this as racial intimidation and the  hoods  an  attempt  to
appear as Ku Klux Klan (KKK) members.  As a result of the incident, the  two
African-American men obtained an attorney, who utilized  the  media  to  his
clients’ benefit.  Since all of the parties involved in  the  incident  were
co-workers who had known each other for a  long  period  of  time,  tensions
were especially high.  In addition, the involvement of  the  media,  certain
attorneys, and community leaders only served to fan  the  flames  of  racial
division.

On 2  November  1996,  the  applicant  was  talking  to  a  white  co-worker
regarding the pillow case incident and that  it  was  unfair  that  the  two
African-American complainants were free to utilize their freedom  of  speech
in the media to ruin the reputation of the  entire  organization  and  Kelly
AFB, but that everybody on base had  to  keep  quiet  and  just  accept  the
slander they saw almost nightly on the evening news.  To  the  best  of  his
recollection he stated, “If those n-----s return, they should be  shot,  and
I will be the first one in line.”  The Chief  Union  steward  overheard  his
statement.

The applicant does not dispute that he deserved some form of punishment  for
his use of the word “n-----,” and accepted the Article 15 and  reduction  to
the grade of staff sergeant, without appeal.   His  commanders  assured  him
that this would be sufficient punishment and that in six months he would  be
able to sew his technical sergeant stripes back on and  would  not  have  to
lose his job.  However, he was put on administrative leave  and  within  two
days he was barred from the base, and notified that  he  was  being  removed
from his civil service position.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant is currently serving in the Air Force Reserve in the grade  of
staff sergeant.

Although the applicant’s military personnel records do not  contain  a  copy
of  the  AF  Form  3070,  Record  of  Nonjudicial  Punishment   Proceedings,
documentation submitted by the applicant indicates that on 8 December  1996,
his commander imposed nonjudicial punishment consisting of reduction to  the
grade of staff sergeant, to which the applicant did not appeal.

On 12 December 1996, the applicant was notified by  his  commander  that  he
was ordered not to reenter or be found  within  the  limits  of  Kelly  AFB,
Texas, as a result  of  his  racial  slurs  and  communicated  threat  to  a
coworker on 2 November 1996.

An Administrative Discharge Board (ADB) convened on  9  December  1997,  and
found that the applicant  did  not  communicate  the  threat  to  shoot  his
coworkers but that he had made a false official statement in  which  he  had
denied using the  words  “N-----s,”  “shot”  or  “killed,”  and  making  the
statement  to  the  effect  that  he  would  be  first  in  line.   The  ADB
recommended that he be retained and he was returned to a status in which  he
was permitted to participate for pay  and  points.   The  ADB  findings  and
recommendations were approved on 8 January 1998.



The applicant reenlisted in the Air Force Reserve on 2 February 2000, for  a
period of six years.

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/DP recommends the application be  denied.   AFRC/DP  states,  in  part,
that as the sole decision authority on whether or not the  applicant  should
be allowed to participate within his wing,  the  wing  commander’s  decision
should be supported.  The welfare of the many in this case should be  placed
above the desires of one  individual  to  return  to  a  place  of  previous
employment.  The applicant may  apply  for  employment  within  the  Federal
sector, and if selected,  return  to  work.   However,  the  applicant  also
desires to participate as a reservist at the 433rd Air Wing.  While  he  may
return to Federal employment, if selected, they believe participation  as  a
reservist within the 433rd Air Wing should be left to  the  purview  of  the
wing commander of that unit who  is  adamant  that  he  does  not  want  the
applicant to participate in his unit.  This decision is based, in  part,  on
the applicant’s admission to the  offenses  that  facilitated  his  previous
disbarment from the installation.  Many of the principal parties  are  still
employed  with  the  wing  and  contact  with  the  applicant   could   have
catastrophic consequences.

The AFRC/DP evaluation, with attachments, is at Exhibit B.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant’s counsel states that the Air Force position that there  would
be catastrophic consequences if the applicant  were  allowed  to  return  to
work sums up just how outrageous the position of the  base  authorities  has
been and continues to be.  The Board should review  the  list  of  penalties
the applicant and his family have endured for the use of the word  “n-----,”
and not initially owning up to it.  He was told that when  he  accepted  the
Article 15 that would be the end of it.  The applicant represents no  threat
to the Air Force community and never has.  A board of officers  has  already
reviewed all the evidence and testimony on this  point  and  concluded  that
the applicant never made a threat. The two African-American  males  involved
in the incident have moved on and no longer live in the area.   Furthermore,
if there was ever a rational basis for doing so in this case,  it  has  long
since ceased to make sense.  The current base commander is afraid  to  stand
up to the Chief Union Steward  and  the  applicant  has  been  blocked  from
performing his reserve duties in the area where he lives,  which  improperly
circumvents the procedures for terminating a  reservist.   Counsel  contends
there is a double standard as evidenced by the Air Force Chief of  Chaplains
being allowed to take her position despite  having  said,  “African-American
chaplains are good pastors and preachers, but cannot do staff work.”

While a wing commander may  be  entitled  to  broad  discretion  in  barring
offenders  from  the  base,  that  decision  must  not  be   arbitrary   and
capricious.  The fact that a Union Steward  might  -  quite  unreasonably  -
create difficulties is not a justification for  continuing  a  barment  that
serves no valid purpose and is, in effect, a  circumvention  of  the  proper
procedures for terminating a reservist.  The applicant and his  family  have
been punished enough.  The incident occurred while he was on  military  duty
and should not have impacted his civil service employment.

In  further  support  of  the  appeal,  the  applicant’s   counsel   submits
statements from two females regarding background information  on  the  Chief
Union Steward.

The applicant’s complete responses, with attachments, are at Exhibits D,  E,
and G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFRC/DPZ provided an additional evaluation of the application and  indicated
the following:

      a.    They recommend approval of his request  for  award  of  pay  and
points for Reserve duty during the period January  1998  (the  date  he  was
notified of the AFRC Discharge Board) to August 2002 (the date  he  accepted
the offer to return to a participating status in the Reserve).

      b.    The applicant’s request for retroactive promotion to the  grades
of technical sergeant and master sergeant should  be  denied  since  Reserve
enlisted promotions are based upon the member being  assigned  to  a  higher
graded position, as well as having  the  recommendation  of  the  supervisor
along with the approval of the commander.  As such, in the  absence  of  any
documentation to support that he would have met these assignment  conditions
during the period in question, and in turn,  that  his  supervisor/commander
would have promoted him, they find no  basis  to  warrant  approval  of  his
promotion requests.

      c.    The question as to how the  applicant  could  obtain  a  Reserve
position somewhere other than the 433rd Air Wing should be closed  since  he
accepted a position with the Air Force Reserve at  the  Naval  Air  Station,
Joint Reserve Base, at Fort Worth, Texas, in  vehicle/equipment  maintenance
with the 301st Logistics Support Squadron.




      d.    The applicant was not precluded from  participating  during  the
period in question; however, his barment from the base and his inability  to
locate an  assignment  elsewhere  within  the  Reserve  prevented  him  from
participating for pay and points during the period in question.   Thus,  his
absences from Unit Training Assemblies (UTAs), Annual  tours,  etc.,  having
been reflected as excused, are appropriate and correct.   In  addition,  the
absences are not reflected in his point history.

      e.    The applicant’s removal from  his  civil  service  position  was
managed via the Merit Systems Protection Board and the  removal  action  was
affirmed.

The AFRC/DPZ evaluation, with attachments, is at Exhibit H.

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant’s counsel reviewed the additional evaluation  and  states,  in
part, that while AFRC/JA is  recommending  the  applicant  receive  Inactive
Duty Training (IDT) and Active Training (AT) pay  and  points  from  January
1998 to August 2002, they do not indicate why he should not receive pay  and
points  retroactive  to  26 November  1996  (the  date  he  was  placed   on
administrative  leave).   In  addition,  he  was  due  to  get  a  virtually
automatic promotion to the grade of master sergeant many years  ago  because
of the position he  had.   Even  with  the  reduction  in  grade,  he  would
certainly have been promoted to at least the  grade  of  technical  sergeant
over the past seven years if his command had not  ignored  the  findings  of
the discharge board that he be retained and the order that he be allowed  to
continue in the reserves.

Even though the applicant used the “N-word” in  anger  because  of  what  he
viewed as a betrayal, a board of officers had already heard  the  testimony,
reviewed the evidence, and determined there was no threat  intended.   There
is no other  evidence  to  indicate  racism  on  his  part  and  substantial
evidence to show the contrary.

The applicant should be considered for  a  position  commensurate  with  his
grade (hopefully master sergeant), his skills, and within  as  reasonable  a
distance to his home as possible.  There is no reason why he  could  not  go
back to the Lackland AFB area.

If the AFBCMR has the authority to rule of the applicant’s removal from  his
civil service position, he requests reinstatement based on the same  reasons
set out previously plus the fact that his use of the  “n-word”  occurred  on
military duty.  He has been permitted to resume  his  military  duty  so  it
seems even more sensible to allow him to resume his civil  service  position
since there is absolutely no misconduct alleged  to  have  occurred  on  his
civilian job.

In  further  support  of  the  appeal,  the  applicant’s   counsel   submits
documentation to indicate that as a C-5 crew chief he was virtually  assured
of promotion to the grade of master sergeant.

Counsel’s complete responses, with attachments, are at Exhibits I and K.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or
regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence  has  been  presented  to  demonstrate  the
existence of error or injustice to warrant  awarding  pay  and  points  from
1997 to 2002.  In this respect, we note that on 16 September 1996,  five  of
the applicant’s coworkers donned white  pillowcases  over  their  heads  and
taunted two black coworkers on the flight line.  On 2 November  1997,  after
learning the five white coworkers received notices of proposed removals  and
the  two  black  coworkers  would  be  returning  to  work,  the   applicant
approached the Union Steward and stated,  “If  those  N------  return,  they
should be shot or killed and I will be the first in line!”   When  initially
questioned by an AFOSI  Special  Agent,  he  denied  making  the  statement;
however, he now admits his statement was  ill-advised.   The  applicant  was
notified by his commander that he was ordered not to  reenter  or  be  found
within the limits of Kelly AFB, Texas, as a result of his racial  slurs  and
communicated threat to a coworker on 2 November 1996.  An ADB convened on  9
December 1997, and found that he did not communicate  the  threat  to  shoot
his coworkers but that he had made a false official statement  in  which  he
had denied using the words “N-----s,” “shot” or  “killed,”  and  making  the
statement  to  the  effect  that  he  would  be  first  in  line.   The  ADB
recommended that he be retained and returned to a participating status.   In
view of the ADB’s finding  that  he  did  not  communicate  a  threat  to  a
coworker and should be  returned  to  a  participating  status,  we  believe
corrective action in regard to his request for point  credit  from  1997  to
2002  is  appropriate.   While  the  applicant  requests  pay   and   points
retroactive to 26 November 1996 (the date he was  placed  on  administrative
leave), we believe his pay should only be  made  retroactive  to  the  ADB’s
finding that he did not wrongfully communicate a threat to  a  coworker  and
recommendation that he should be retained in  the  Air  Force  Reserve.   In
this regard, we note that in the exercise of  his  discretionary  authority,
the commander placed the applicant  on  administrative  leave,  pending  the
outcome of the ADB.  Until such time as the ADB determined that he  had  not
communicated a threat  to  a  coworker,  there  existed  no  basis  for  the
commander to determine  that  he  should  be  returned  to  a  participating
status, especially considering the racial incident one year earlier and  the
racial tension that had to have still existed at the base  one  year  later.
We believe the commander would have been negligent in his duties had he  not
taken appropriate  action  to  ensure  the  safety  of  his  workforce.   In
determining appropriate relief, the Board recognizes that  during  the  five
years (1991 - 1995) preceding the 1996 ADB, the applicant earned  more  than
the minimum ADT and IDT points necessary for years of  satisfactory  Federal
service; therefore,  the  recommended  corrective  action  is  based  on  an
average of his participation during  the  preceding  five-year  period.   We
also note that since he has been participating since  2  November  2002  and
given his current participation points, he  will  have  sufficient  time  to
earn a year of satisfactory Federal service prior to the completion  of  the
rentention/retirement year ending 12 September 2003.  In view of the  above,
we ecommend his records be corrected to the extent indicated below.

4.  The applicant requests that he be allowed to continue  his  reserve  and
wage grade  duties;  however,  the  Board’s  authority  is  limited  to  the
correction of military records.  As such, the Board is without authority  to
take corrective action regarding  his  civilian  employment.   We  do  note,
however, that the applicant’s appeal of the removal  action  was  considered
and affirmed by the Merit Systems Protection Board (MSPB).  The Director  of
Personnel, Air Force  Reserve  Center  (AFRC/DP),  has  indicated  that  the
applicant may apply for  employment  within  the  Federal  section,  and  if
selected, return to work.

5.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice concerning the remainder  of  his  requests.
The applicant contends that while he deserved some form  of  punishment  for
his inappropriate comments, the punishment he received was too  severe.   We
disagree.  In this respect, we note that although the ADB found that he  had
not communicated a threat to a coworker, it found that he had made  a  false
official statement to an AFOSI Special Agent, when asked if he had used  the
alleged language.  Based on the recommendation of the ADB, he  was  returned
to a participation status.  We also note that the commander’s barment  order
was not solely based on his alleged threat to a coworker, but also  his  use
of racial slurs.  In the interest of security, good  order,  and  discipline
of the installation, the commander determined he should be barred  from  the
base.  He could have requested, in advance, to enter the base to  report  to
his organization to  participate  and  chose  not  to  do  so.   Action  was
subsequently taken to involuntarily  assign  him  to  the  Individual  Ready
Reserve (IRR) for failure to meet military conduct  standards,  specifically
for  his  use  of  threatening  and  racially  offensive  language.    After
considering the applicant’s submission, the commander determined his  return
would be detrimental to good order  and  discipline  as  well  as  adversely
affecting morale in the wing  and  offered  him  a  position  in  the  301st
Logistics Support Squadron, which he accepted.  In  regard  to  his  request
for promotion to the grade of technical and master  sergeants,  we  find  no
evidence that he should be promoted, or that he  has  been  recommended  for
promotion to the next higher grade.  Therefore, we find no basis upon  which
to recommend favorable consideration of the remainder of his requests.

6.  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 issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to APPLICANT be corrected to show that:

      a.    He was credited with 27 paid active duty training (ADT)  and  47
paid inactive duty training (IDT)  points  during  the  retention/retirement
year 13 September 1997 through 12 September 1998, resulting in 89 total  and
retirement points and a year of satisfactory Federal service.

      b.    He was credited with 27 paid ADT and 47 paid IDT  points  during
the retention/retirement year 13 September 1998 through  12 September  1999,
resulting in 89 total and retirement  points  and  a  year  of  satisfactory
Federal service.

      c.    He was credited with 27 paid ADT and an additional 43  paid  IDT
points during the retention/retirement year  13 September  1999  through  12
September 2000, resulting in 89 total and retirement points and  a  year  of
satisfactory Federal service.

      d.    He was credited with 27 paid ADT and 47 paid IDT  points  during
the retention/retirement year 13 September 2000 through  12 September  2001,
resulting in 89 total and retirement  points  and  a  year  of  satisfactory
Federal service.

      e.    He was credited with 27 paid ADT and 47 paid IDT  points  during
the retention/retirement year 13 September 2001 through  12 September  2002,
resulting in 89 total and retirement  points  and  a  year  of  satisfactory
Federal service.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2001-00143
in Executive Session on 24 April 2003, under the provisions of AFI 36-2603:

                       Mr. Thomas S. Markiewicz, Vice Chair
                       Mr. Laurence M. Groner, Member
                       Ms. Carolyn B. Willis, Member




All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Feb 00, w/atchs.
    Exhibit B.  Letter, AFRC/DP, dated 16 Jul 01, w/atchs.
    Exhibit C.  Letter, SAF/MIBR, dated 3 Aug 01.
    Exhibit D.  Letter, Counsel, dated 24 Aug 01.
    Exhibit E.  Letter, Counsel, dated 7 Sep 01, w/atchs.
    Exhibit F.  Letter, AFBCMR, dated 26 Oct 01.
    Exhibit G.  Letter, Counsel, dated 16 Dec 02, w/atchs.
    Exhibit H.  Letter, AFRC/DPZ, dated 23 Dec 02, w/atchs.
    Exhibit I.  Letter, Counsel, dated 6 Jan 03, w/atchs.
    Exhibit J.  Letter, SAF/MRBR, dated 17 Jan 03.
    Exhibit K.  Letter, Counsel, dated 11 Feb 03, w/atchs.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair

AFBCMR BC 2001-00143




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:

      The pertinent military records of the Department of the Air Force
relating to APPLICANT, be corrected to show that:

            a.   He was credited with 27 paid active duty training (ADT)
and 47 paid inactive duty training (IDT) points during the
retention/retirement year 13 September 1997 through 12 September 1998,
resulting in 89 total and retirement points and a year of satisfactory
Federal service.

            b.   He was credited with 27 paid ADT and 47 paid IDT points
during the retention/retirement year 13 September 1998 through 12 September
1999, resulting in 89 total and retirement points and a year of
satisfactory Federal service.

            c.   He was credited with 27 paid ADT and an additional 43 paid
IDT points during the retention/retirement year 13 September 1999 through
12 September 2000, resulting in 89 total and retirement points and a year
of satisfactory Federal service.

            d.   He was credited with 27 paid ADT and 47 paid IDT points
during the retention/retirement year 13 September 2000 through 12 September
2001, resulting in 89 total and retirement points and a year of
satisfactory Federal service.

            e.   He was credited with 27 paid ADT and 47 paid IDT points
during the retention/retirement year 13 September 2001 through 12 September
2002, resulting in 89 total and retirement points and a year of
satisfactory Federal service.






JOE G. LINEBERGER

Director

Air Force Review Boards Agency