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

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01216-2
                       INDEX CODE:  115.02
      XXXXXXXXXXXXXXXXXXXXX  COUNSEL:  GARY R. MYERS

                       HEARING DESIRED:  YES

_________________________________________________________________

RESUME OF CASE:

On 16 October  1997,  the  Board  considered  and  denied  applicant’s
requests to be reinstated to active duty in  the  grade  of  technical
sergeant; awarded all back pay and allowances due  and  credited  with
time in grade for pay promotion; and, his records be expunged  of  all
derogatory  information.   For  an  accounting  of   the   facts   and
circumstances surrounding the rationale for the  earlier  decision  by
the Board, see the Record of Proceedings at Exhibit H (with Exhibits A-
G).

On 29 March 2005, the  applicant  filed  suit  in  the  United  States
District Court of Federal Claims.

On 1 November 2005, the Court remanded  the  case  to  the  Board  for
reconsideration with instructions to review the Air Force  records  of
investigation of applicant’s claim of ineffective counsel (Exhibit  K)
and the Discharge Review Board’s alleged findings that “an  error  and
injustice” had occurred with regard to the applicant (Exhibit L).   It
also directed the Board to explain its rationale if it decided not  to
grant a hearing.

A complete  copy  of  the  Court’s  Memorandum-Opinion  and  Order  is
attached at Exhibit I.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request.  JAJM  states
that at the time of the court-martial and Chapter 4 discharge request,
the applicant was an 18 ½ year non-commissioned officer and member  of
the security forces squadron.  A review of the contents  of  the  file
establishes the applicant signed a request for a Chapter  4  discharge
in lieu of court-martial on 7 December 2000.  In that  memorandum,  he
acknowledges he consulted counsel, that if his request was approved he
could be discharged under other than honorable conditions and  he  was
aware of the adverse nature of  such  a  discharge  and  the  possible
consequences.  The applicant’s Area Defense Counsel (ADC) submitted  a
memorandum, dated 7 December 2000, to which he attached  20  character
statements  and  another  102  assorted   certificates,   letters   of
appreciation, Enlisted Performance Reports, decorations,  etc.   There
were no irregularities in the Chapter 4 submission.  There is  also  a
22 December 2000 memo for record signed by the ADC,  which  summarizes
the steps he took to ensure the Chapter 4  request  was  the  way  the
applicant wanted to proceed and reflected the  concern  the  applicant
had about  having  to  possibly  register  as  a  sexual  offender  if
convicted of some of the charges.  Additionally, there is  a  27  July
2001 statement from the defense paralegal assigned to  work  with  the
ADC.  In her memorandum, she relates the ADC interviewed all  four  of
the alleged victims and between the two of them another  28  potential
witnesses were interviewed.

On 10 April 2001, an Investigating Officer (IO) was appointed  by  the
Air Force Legal Services  Agency  (AFLSA)  commander  to  examine  the
allegation of ineffective assistance  of  military  counsel.   The  IO
filed his report in August of 2001 and determined by  a  preponderance
of evidence that the  allegations  were  unsubstantiated.   AFLSA/JAJD
(Trial Defense Division) reviewed the IO’s  report  of  investigation,
found  it  was  legally  sufficient,   and   that   it   supported   a
recommendation to close the case.   Ultimately  the  IO’s  conclusions
were adopted by the Air Force in finding no basis existed for a  claim
of ineffective assistance of counsel.

It is JAJM’s opinion the preponderance of the  evidence  supports  the
conclusion that the applicant’s claim  of  ineffective  assistance  of
military counsel is without merit.

The complete JAJM evaluation is at Exhibit M.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By fax dated 19 June 2006, the applicant’s civilian counsel  responded
stating they have never seen the  AFLSA  investigation  in  which  the
advisory opinion relies exclusively upon.  The investigation  examined
whether the applicant’s ADC had violated any ethical standards.   They
never have suggested he did.  The AFLSA investigation appears to be in
direct conflict with the DRB proceedings.   Declaring  that  a  “Board
sponsored evidentiary hearing into the matter is unwarranted”  is  the
height of arrogance.  A Board sponsored evidentiary hearing  into  the
matter is the only way to get the truth.  Relief should be granted  to
the applicant or an evidentiary hearing should be held.

The Counsel’s submission is at Exhibit O.

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APPLICANT’S REVIEW OF ADDITIONAL DOCUMENTATION:

In response to providing the applicant’s counsel with a redacted  copy
of the AFLSA Commander Directed Report of Investigation and subsequent
attachments (Exhibits P and R), the  counsel  replied  the  affidavits
from the ADC and his legal assistant are self serving and are untested
by cross examination.  Only a hearing can properly develop this  case.
What is clear is that the ADC gave palpably bad advice on the question
of whether the applicant could enter police work saddled with a  UOTHC
discharge.  What is equally clear is that the legal assistant was  not
privy to  conversations  between  the  applicant  and  the  ADC.   Her
affidavit tells of what she thinks or believes but not what she knows.
 A hearing is the only proper vehicle to resolve this matter.

The Counsel’s submissions are at Exhibits Q and S

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has not  been  the  victim  of  an  error  injustice
warranting the level of relief requested of this Board.   Pursuant  to
the remand order of the United States Court of Federal Claims, we have
completed a complete and exhaustive review of the complete evidence of
record in this case.  Of significance, we note that  the  evidence  of
record in this review included the  Air  Force  investigation  of  the
applicant’s claim of ineffective assistance of counsel, which was  not
previously considered, and transcribed testimony from the AFDRB Formal
Hearing with us placing emphasis on the fact the AFDRB has  previously
concluded the applicant was the victim of an error  or  injustice  for
the same events under our review.

2.  Primary to the applicant’s argument for relief  is  the  claim  of
ineffective  assistance   of   counsel.    Notwithstanding   counsel’s
assertion that the Air  Force  investigation  into  this  matter  only
looked at whether the  Area  Defense  Counsel  committed  any  ethical
violations,  we  believe  that  the  investigation  establishes  by  a
preponderance of the evidence the applicant  was  not  the  victim  of
ineffective assistance of counsel.  As such, we are not persuaded  the
applicant  was  not  properly  advised  and  put  on  notice  of   the
consequences of his voluntary request for administrative separation in
lieu of court-martial and that he could receive an  under  other  than
honorable conditions discharge.  We note in the advisory  prepared  by
AFLOA/JAJM that, in addition  to  relying  on  advice  from  his  Area
Defense Counsel, the applicant also sought a  second  opinion  from  a
civilian  attorney  prior   to   submitting   his   request   for   an
administrative  separation  rather  than  court-martial.   Given   the
applicant’s choices, administrative discharge or court-martial, and if
convicted by court martial, possible confinement and labeling as a sex
offender, we are not persuaded the Area  Defense  Counsel  could  have
provided any guidance that raises the likelihood the  applicant  would
have or should have made a different choice.  Consequently, we do  not
believe the applicant had ineffective assistance of counsel.

3.  It appears  there  are  questions  regarding  why  the  Air  Force
Discharge Review Board in their consideration of this case  determined
the applicant should have his discharge upgraded, but we  decided  not
to grant  the  additional  relief.   After  thoroughly  reviewing  the
transcript of the AFDRB hearing, we find the  relief  they  granted  a
reasonable exercise of their  authority,  but  feel  that  the  relief
requested of this Board exceeds what would be  appropriate.   We  note
first that the AFDRB does not use the error or injustice standard that
governs the AFBCMR.  Rather it uses the criteria  of  inequity  and/or
impropriety in determining whether the character of a discharge should
be upgraded or whether the basis for a discharge  should  be  changed.
(Exhibit T)   Secondly, its governing instruction specifically  allows
an upgrade even when there is not an  inequity  or  impropriety  based
upon what can  best  be  described  as  a  consideration  of  all  the
surrounding facts and circumstances. (Exhibit T, DODI 1332.28, E4.3.3)
 In this case, it found the applicant’s discharge was consistent  with
the  procedural  and  substantive  requirements   of   the   discharge
regulation and was  within  the  sound  discretion  of  the  discharge
authority.  However, it appears the AFDRB had some doubt as to whether
the advice given to the applicant by his ADC was  possibly  incorrect,
doubt which this  Board  does  not  have  as  explained  above.   When
factoring in the possibility of incorrect  advice  from  counsel,  the
applicant’s apparent stellar career, the fact the allegations were not
confirmed by a third party and testimony given, the  AFDRB found there
was sufficient mitigation and extenuation to upgrade  the  applicant’s
discharge to honorable, change the narrative reason for discharge, and
the RE code.  However, we do not believe the AFDRB’s findings  in  any
way exonerate the applicant or undermine the gravity of  the  offenses
of which he was charged.  Since the applicant requested administrative
separation rather than a court-martial, we do not have the benefit  of
that process.  However, the  applicant  has  not  provided  sufficient
evidence the actions of the commander in this case,  the  decision  to
prefer court-martial charges,  should  be  held  to  be  arbitrary  or
capricious or otherwise to be an error or  injustice.   It  should  be
noted that the commander had the benefit of the investigation into the
allegations against the applicant as well  as  first-hand  observation
and interaction with all of the parties concerned.   He  and  the  Air
Force were ready to proceed to trial; however, the applicant chose  to
avoid the possibility of a  conviction  by  requesting  administrative
separation.  Additionally, he  made  a  conscious  decision  to  waive
lengthy service probation review of his record to make the offer  more
likely to be accepted  by  the  government.   The  AFDRB  had  limited
remedies and gave the ones they had.   They  did  not  and  could  not
decide whether there was an error or injustice that supported the much
broader remedies requested of this panel.

4.  Finally, in arguing the applicant’s position, his  counsel  opines
that the only way  this  Board  can  make  an  informed  and  credible
decision is to grant the applicant an “evidentiary hearing.”   We  are
cognizant that although the Court  has  not  directed  us  to  have  a
hearing, it states a hearing “may” be advisable.  Applicant’s  counsel
asserts that only  an  evidentiary  hearing  will  conclude  what  the
applicant was really told on the issue of a UOTHC discharge and future
work in law enforcement.  Even if an evidentiary hearing might  assist
in that determination, the point is  our  decision  is  not  primarily
based upon the specific content of that advice or even  whether  there
was ineffective counsel.  Whether the applicant was given good or even
brilliant legal representation, the Board concludes  he  fundamentally
understood the deal he was offered and we are not convinced  he  would
have made a different choice had  he  been  given  different  counsel.
Since our ultimate conclusion  is  based  upon  our  unwillingness  to
speculate as to what would have happened had  the  case  proceeded  to
trial and the  fact  that  the  applicant  no  longer  has  the  UOTHC
discharge he alleges he did not understand he  faced,  an  evidentiary
hearing is not necessary since it would not change our  view  of  what
additional remedy is appropriate.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

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

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 11 July 2007, under the  provisions  of  AFI  36-
2603:

            Mr. Michael J. Novel, Panel Chair
            Ms. Karen A. Holloman, Member
            Mr. Wallace F. Beard, Jr., Member

The following documentary evidence for AFBCMR Docket  Number  BC-2003-
01216 was considered:

      Exhibit H.  ROP with Exhibits A-G.
      Exhibit I.  Court Remand.
      Exhibit J.  Letter, AF/JA, dated 7 Feb 02.
      Exhibit K.  Letter, AFLSA/CC, w/atchs (Ethics Inquiry).
      Exhibit L.  AFDRB Findings with transcribed testimony.
      Exhibit M.  Letter, AFLOA/JAJM, dated 11 May 06.
      Exhibit N.  Letter, SAF/MRBR, dated 23 May 06.
      Exhibit O.  Counsel’s Rebuttal, dated 19 Jun 06.
      Exhibit P.  Letter, SAF/MRBR, dated 13 Dec 06, w/atchs.
      Exhibit Q.  Counsel’s Rebuttal, dated 14 Feb 07, w/atchs.
      Exhibit R.  Letter, SAF/MRBR, dated 17 Apr 07, w/atchs.
      Exhibit S.  Counsel’s Rebuttal, dated 15 May 07.
      Exhibit T.  DODI Number 1332.28, dated 4 Apr 04.




                             MICHAEL J. NOVEL
                                             Panel Chair