RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  02-02582
         INDEX CODE 110.03  136.00  126.02
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 2000 under-other-than-honorable-conditions  discharge  (UOTHC)  be
reconsidered   and   upgraded   under   lengthy   service    probation
consideration and he be allowed to retire.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The USAF Academy (USAFA) leadership put him in a  mental  institution,
wrongfully incarcerated him in a civilian jail unnecessarily for  over
a month, had him sign paperwork under duress giving up any and all Air
Force benefits in lieu of a court-martial, imposed extreme  punishment
in his discharge instead of going  through  the  proper  channels  and
misused the spirit of the law. The source of  his  troubles  began  in
1995 when then  Lt  Col  B,  the  inspector  general  (IG),  expressed
displeasure with the way he conducted a base-wide exercise. He told Lt
Col B to speak to his supervisor since the  officer  was  not  in  his
chain of command. The beginning of the end of  his  career  came  five
years later when the officer was made  wing  commander.  The  computer
incident, which drove the Article 15, was done by someone  else  using
his login name. He was punished despite overwhelming evidence  proving
his innocence. He assuaged his depression with a one-time  near  fatal
drinking spree and was first placed in a mental institution because he
was thought to be  suicidal  and  then  incarcerated  because  he  was
thought to be a threat. While he was  in  pre-trial  confinement,  his
area defense counsel (ADC) convinced him that he faced a court-martial
conviction with at least 10 years in prison and his best  recourse  to
get out and stay out of jail  was  to  opt  for  Chapter  4.  His  ADC
misrepresented him and did not give sound legal advice. The controlled
substance materials and simulated explosives found  200  meters  in  a
common area behind  his  house  were  never  proven  to  be  his.  His
urinalysis  was  negative  and  the  alleged   offenses   were   never
investigated.  His  commander   disregarded   medical   findings   and
recommendations as well as other evidence in  an  effort  to  end  his
career.

In support, he provides  a  personal  statement  and  statements  from
others, many character/reference  letters,  letters  of  appreciation,
certificates, performance feedback worksheets and  reports,  newspaper
clippings, and other official documents. Also provided is a  statement
from an individual who asserts he was the one who posted the  pictures
on the web site using the applicant’s log-on. The applicant’s complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The  following  information  was  extracted  from  official  documents
provided by the applicant, his military personnel/medical records, and
the 21 Dec 00 Report of Investigation (ROI) by the Air Force Office of
Special Investigations (AFOSI).

The applicant enlisted in the Regular Air Force on 18 Mar 82  and  was
ultimately promoted to the grade of master sergeant (MSgt) with a date
of rank (DOR) of 1 May 96. During the period in question, he  was  the
superintendent of the base exercise evaluation team  assigned  to  the
10th Air Base Wing (10ABW) at the USAFA in Colorado. In this capacity,
he wrote hostage negotiation scenarios and attended advanced  training
on hostage situations and negotiations.

His performance reports from 18 Mar 82 through 15 Jun  89  came  under
the previous evaluation system and all have the highest overall rating
of “9.”  The EPRs under the current system reflect the following:

            CLOSING PERIOD        OVERALL EVALUATION

             7 Dec 90                        5
             8 Jun 92                        4
             8 Jun 93                        5
             8 Jun 94                        5
            19 Jul 95                        5
            31 Jan 96                        5
            10 Jan 97                        5
            10 Jan 98                        5
            10 Jan 99                        5
            10 Jan 00                        4
             7 Nov 00                        2 (Referral)

According  to  the  AFOSI’s  investigation   (discussed   below)   and
information they received from the 10ABW commander, the applicant  was
involved in an incident in the summer of 1999 at  the  Fitness  Center
softball fields. His behavior apparently was inappropriate and he  was
suspended  from  some  intramural  activities.  A  Services  “Judicial
Committee”  placed  him  on  “probation”  for  one   year   concerning
intramural activities. In Oct 99, Security  Forces  (SF)  investigated
the applicant for transmitting pornography over a government computer.
 The investigation proved  the  allegation  and  command  offered  him
nonjudicial punishment in the form of reduction to technical sergeant.
 In Dec 00, the applicant was  still  appealing  this  punishment  and
requested a Letter of Reprimand (LOR) in lieu of the Article  15.  The
applicant’s appeal was successful and he received an LOR and  was  not
reduced in grade.  These documents are not contained in the  available
records.

On 31 Jul 00, applicant was notified of the 10ABW  commander's  intent
to  impose  nonjudicial  punishment  upon  him  for  using  sexual  or
inappropriate language to four individuals, including an opposing team
player, during various sporting events between, on or about 8  Jul  00
and 12 Jul 00. On 3 Aug 00, after consulting with  counsel,  applicant
waived his right to a trial by  court-martial,  requested  a  personal
appearance and submitted a written presentation. On 4 Aug 00,  he  was
found guilty by the commander who imposed the punishment of forfeiture
of $500.00 in pay  per  month  for  two  months  and  a  reduction  to
technical sergeant (TSgt) suspended until  3  Feb  01.  The  applicant
appealed the punishment; however, the appeal was denied on 15 Sep  00.
The Article 15 was filed in his Unfavorable Information File (UIF) and
his  selection  record.  Also,  the  Services   “Judicial   Committee”
apparently met again and expelled him from USAFA  varsity  sports  and
intramural activities.

On 7 Nov 00, the  10ABW  commander  vacated  the  suspended  reduction
because the applicant willfully failed to  restrict  his  use  of  the
government computer system to official use only between, on  or  about
1 Oct 00 and 24 Oct 00. The applicant allegedly pasted  photos  of  an
active duty member onto photos  depicting  homosexual  activities  and
posted them on a computerized public message board. The applicant made
a personal  appearance  and  written  presentation;  however,  he  was
reduced to TSgt with a DOR of 4 Aug 00.

Later on 7 Nov 00, the 10ABW commander notified the  AFOSI  detachment
commander that the applicant, a single parent, was locked in  his  on-
base residence and acting strangely, that he  had  contacted  his  1st
Sergeant and asked  him  to  “make  sure  the  kids  don’t  come  home
tonight.” The 1st Sergeant told the SF he believed the  applicant  was
unstable/suicidal. When an SF  patrol  responded  to  the  applicant’s
quarters, he was dressed in full battle dress  uniform,  had  darkened
his face completely with camouflage paint, yelled obscenities and  ran
inside. He also appeared to be dragging a  CPR  mannequin  around.  SF
patrol called for back up, secured a perimeter, and waited for further
SF response. The applicant appeared to be  intoxicated  and/or  highly
agitated. The AFOSI detachment commander knew the applicant  well  and
went on scene to try to establish  contact  with  the  applicant.  The
applicant exited his residence and surrendered to SF  personnel  after
several hours of negotiations between himself and the AFOSI detachment
commander.  When  asked,  he  gave  the  AFOSI  detachment   commander
permission to enter the residence and search for weapons. A search  of
the applicant’s home  and  surrounding  wooded  area  several  hundred
meters behind his house disclosed  the  following:  four  green  smoke
grenades; one US Navy signal, smoke and illumination  mark;  one  50ml
bottle of an anabolic steroid; a box of 88  hypodermic  syringes;  and
one empty bottle labeled “Sterile Empty Vial.”  There  was  an  almost
empty bottle of whiskey on the kitchen counter. SF troops  transported
the applicant to Ft. Carson Army Hospital for psychiatric  evaluation.
SF personnel stated he made threats in the car and  in  the  emergency
room. Subsequent investigation revealed the applicant  was  not  armed
during this incident and drugs were not in play. A blood alcohol  test
taken four hours after the incident indicated a  blood  alcohol  level
more than twice the legal limit for driving a vehicle. He spent  three
days  at  the  Cedar  Springs  Inpatient  Facility  for  psychological
evaluation. He was then placed in pretrial confinement in the El  Paso
County Criminal Justice Center.

Based on a legal review by the 10ABW Judge Advocate (JA), dated  6 Dec
00, the following charges were preferred to the  applicant  on  21 Nov
00: breach of the peace (participated  in  an  act  of  a  violent  or
turbulent nature); simple assault (attempted to do bodily harm  to  at
least two security forces members); drunkenness,  disorderly  conduct;
communicating a threat (to  security  forces  members);  disrespectful
language toward a chief master sergeant; wrongful use  and  possession
of anabolic steroids, a controlled substance; and larceny (four  smoke
grenades,  one  signal  smoke  and  illumination   mark   explosives).
[Examiner’s Note: The actual charge sheet is not  in  the  applicant’s
records -- see legal review information below.]

On 4 Dec 00, after consulting with counsel,  the  applicant  requested
discharge in lieu of court-martial under AFI 36-3208, Chapter  4,  and
waived his right to request lengthy service probation consideration by
the Office of the Secretary of the  Air  Force  under  Chapter  6.  He
indicated he understood that  he  could  be  separated  with  a  UOTHC
discharge and was aware of the adverse nature of such a discharge  and
the possible consequences. The ADC  provided  a  supporting  statement
outlining mitigating circumstances and  recommending  the  applicant’s
request be granted.

On 6 Dec 00, the EPR for the period 11 Jan 00 through  7  Nov  00  was
referred to the  applicant.  It  indicated  failure  to  meet  minimum
standards and unacceptable on/of duty conduct, an  overall  rating  of
“2” and remarks that several times during  the  reporting  period  the
applicant publicly made sexually inappropriate comments, for which  he
was issued a Letter of Reprimand (LOR) for the first incidents and  an
Article  15  for  the  subsequent  instances.  The  additional   rater
concurred with the rater and indicated the applicant  elected  not  to
provide a rebuttal.

On 6 and 8 Dec 00, legal  reviews  recommended  that  the  applicant’s
request  for  discharge  in  lieu  of  court-martial  with   a   UOTHC
characterization be approved.  It  should  be  noted  that  there  are
inconsistencies in the charges presented in the legal reviews.  Again,
as stated above, the actual charge sheet is  not  in  the  applicant’s
records.  The 6 Dec 00 review  from  10ABW/JA  presented  the  charges
discussed in the paragraphs above. The 8 Dec 00 legal  review  by  the
USAFA/JA to the USAFA superintendent contained the following  charges:
dereliction of duty by failing  to  restrict  use  of  the  government
computer to official use only; pasting photos of an active duty member
over photos of homosexual acts and  posting  them  on  a  computerized
public  message  board;  charging  at  two  individuals  and  shouting
obscenities; being disrespectful by lunging and  shouting  obscenities
at a  chief  master  sergeant;  communicating  indecent  language  and
threats; wrongful possession and use of  anabolic  steroids;  wrongful
possession of drug paraphernalia; and larceny of  smoke  grenades  and
explosives.

On 11 Dec 00, the USAFA Superintendent granted the applicant’s request
for discharge and directed separation with a UOTHC characterization.

On 14 Dec 00, the applicant was separated in the  grade  of  technical
sergeant with a UOTHC discharge. He had 18 years, 7 months and 23 days
of active service.

On 18 Dec 00, before  the  AFOSI  completed  their  investigation  and
obtained laboratory analysis of  evidentiary  items  by  the  US  Army
Criminal Investigations Laboratory,  the  10ABW  Judge  Advocate  (JA)
advised them that the applicant had requested and received a discharge
in lieu of court martial and that  no  further  investigative  efforts
were necessary.

A letter in the applicant’s  records  from  the  10th  Medical  Group,
USAFA, dated  25  Jun  01,  advises  that  the  drug  urinalysis  test
administered on 13 Nov 00 reported negative for steroids on 21 Feb 01.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/JA states the applicant is requesting the Board undo  what  he
did to himself: after finding  himself  facing  serious  court-martial
charges, he knowingly  and  voluntarily  requested  an  administrative
discharge and waived his lengthy  service  rights.  [Examiner’s  Note:
The charges cited in this advisory  reflect  those  indicated  in  the
8 Dec 00, rather than the 6 Dec 00, legal review -- See  Statement  of
Facts.] This  was  in  exchange  for  avoiding  the  risk  of  federal
conviction, jail time and  a  punitive  discharge.  They  discuss  and
counter the applicant’s contentions  of  unlawful  command  influence,
pressure to request discharge, ineffective assistance of  counsel  and
insufficient evidence. They conclude the applicant  has  not  met  his
burden of proving an error injustice  in  his  case.  He  requested  a
discharge in lieu of court-martial. When that request was approved, he
received a substantial benefit. He now questions the validity of  that
agreement but presents no evidence to support his  claims.  Denial  is
recommended.

A complete copy of the evaluation is at Exhibit C.

HQ  AFPC/DPPRS  believes  the  discharge  was  consistent   with   the
procedural and substantive requirements of  the  discharge  regulation
and was within the discretion of the discharge  authority.  Denial  is
recommended.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant points out that at  the  sporting  event  incident,  for
which he received nonjudicial punishment on  4  Aug  00,  the  accuser
threatened him with a gun.  He can’t prove Col B had a grudge  towards
him because everyone  fears  retaliation.  As  for  the  computer,  he
provided evidence that it could not have been done from  his  computer
and the action was done by someone  else.  He  questions  the  charges
cited in the HQ AFPC/JA advisory, indicating they are  different  from
the ones presented to him [See Statement of Facts]. He  questions  how
he can be charged with steroid use when  the  test  was  negative  and
steroids stay in one’s system for at least one month. He  believes  an
incident can’t be referred to  in  an  EPR  if  it  was  outside  that
reporting period.  His ADC told him that he would not be able to  beat
the breach of peace charge and he was scared out of his options by the
10-year sentence he would receive. The  pretrial  confinement  officer
was also prejudiced against him for an earlier softball game incident.
 He made a mistake getting drunk in his dwelling  but  the  punishment
did not fit the crime. Col B misused his authority and  influence  and
all those involved in the administrative actions fell under his direct
supervision. He wants his  stellar  18+  years  considered  with  some
benefits awarded to him.

A complete copy of  applicant’s  response,  with  attachments,  is  at
Exhibit E.

_________________________________________________________________

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  demonstrating
the  existence  of  error  or  injustice  to  warrant  upgrading   the
applicant’s discharge to general and retiring  him  in  the  grade  of
MSgt. In reaching this conclusion, we  attempted  to  achieve  a  more
equitable resolution to a troubling case.

4.    In their evaluation, HQ AFPC/JA asserts the applicant cannot use
his tender of Chapter 4 to halt the court-martial process  established
by laws as the proper means to adjudicate the allegations against  him
and  then  attempt  to  litigate  those  same  charges,  knowing   the
prosecution is now unable to respond. With regard to  the  applicant’s
evidentiary contentions, we agree. The applicant appears to have had a
history  of  volatility  and   inappropriate   behavior   in   charged
situations. Although there is a possibility he may not have personally
posted pornographic material on a computerized message board,  he  was
clearly irresponsible in facilitating an unauthorized person’s  misuse
of a government computer. His poor judgment supported the vacation  of
the suspended reduction and he has provided  no  compelling  basis  to
warrant its voidance. We can understand his frustration and  financial
concerns when  his  suspended  reduction  was  vacated;  however,  his
consumption  of  nearly  a  bottle  of  whisky  and   his   subsequent
belligerence and aggression  towards  others  cannot  be  excused.  He
should bear responsibility and be  disciplined  for  his  episodes  of
misconduct. However, we fear a rush to judgment may have  resulted  in
an unduly severe punishment.

5.    According to  the  Chapter  4  paperwork,  the  applicant’s  ADC
advised him that discussions with the legal office, the first sergeant
and the squadron commander stipulated the acceptance of the Chapter  4
discharge request was contingent in part on the applicant waiving  his
right to lengthy service probation consideration. In less than 30 days
after the 7 Nov 00 drinking episode, the applicant requested discharge
in lieu of court-martial and  waived  his  right  to  lengthy  service
probation. Ten days later and before the AFOSI  even  completed  their
evidentiary investigation, he was discharged. We can well imagine  the
Academy’s understandable  embarrassment  over  a  perceived  “hothead”
whose misconduct became particularly conspicuous on 7 Nov  00.  We  do
not believe he was coerced into  his  decision,  but  we  suspect  the
Academy’s desire to conclude the situation as quickly as possible  and
the applicant’s fear of a court-martial conviction may have  prevented
him from fully considering his options. Although the applicant has not
presented persuasive evidence to warrant  absolution,  we  should  not
disregard the fact that his evaluation reports  reflect  he  performed
his duty with distinction during most of his more  than  18  years  of
service. Further, he appears to  have  served  satisfactorily  in  the
grade of MSgt from 1996 to 1999, when his  problems  began.  Taken  in
context over more than  18  years  of  service  and  given  the  hasty
disposition of the applicant’s discharge,  we  believe  the  permanent
loss of the grade  of  MSgt,  a  UOTHC  discharge  and  forfeiture  of
retirement benefits constitute an unduly severe lifelong  penalty.  We
therefore recommend that  his  records  be  corrected  to  reflect  he
continued on active duty until eligible for lengthy service retirement
and that he was promoted to the grade  of  MSgt  the  day  before  his
discharge. However, in view of the totality of the  circumstances,  we
believe his service should be characterized as general. Further,  Item
12.a. on his DD Form 214 should reflect “1982” rather than “1992.”

_________________________________________________________________

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 not discharged under other than honorable  conditions
on 14 December 2000 but on that date he continued on active duty.

      b.  On 30 May 2002, he was  promoted  to  the  grade  of  master
sergeant.

      c.  On 31 May 2002, he was discharged under honorable conditions
and retired effective 1 Jun 2002 for length of service in the grade of
master sergeant.

      d.  Item 12.a. on his DD Form 214 be corrected to reflect “1982”
rather than “1992.”
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 6 Mar 03 under the provisions of AFI 36-2603:

                             Ms. Cathlynn B. Sparks, Panel Chair
                             Ms. Nancy Wells Drury, Member
                             Mr. Robert H. Altman, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence relating to AFBCMR  Docket  Number  02-
02582 was considered:

   Exhibit A.  DD Form 149, dated 3 Aug 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/JA, dated 7 Nov 02.
   Exhibit D.  Letter, HQ AFPC/DPPRS, dated 13 Nov 02.
   Exhibit E.  Letter, SAF/MRBR, dated 22 Nov 02.
   Exhibit F.  Letter, Applicant, dated 21 Dec 02, w/atchs




                                   CATHLYNN B. SPARKS
                                   Panel Chair

AFBCMR 02-02582


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          , be corrected to show that:

           a.  He was not discharged under other than honorable
conditions on 14 December 2000 but on that date he continued on active
duty.

           b.  On 30 May 2002, he was promoted to the grade of master
sergeant.

           c.  On 31 May 2002, he was discharged under honorable
conditions and retired effective 1 Jun 2002 for length of service in
the grade of master sergeant.

           d.  Item 12.a. on his DD Form 214 be corrected to reflect
“1982” rather than “1992.”





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency