AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) GRADE AFSN/SSAN
VOTHC X PERSONAL APPEARANCE RECORD REVIEW
COUNSEL NAME OF COUNSEL AND OR ORGANIZATION ADDRESS AND OR ORGANIZATION OF COUNSEL
[ees LAW OFFICES OF WORE
“— VOTE OF THE BOARD
MEMBERS SITTING HON GEN UOTHC OTHER DENY
X
X
X
X
X
ISSUES INDEX NUMBER EXHIBITS SUBMITTED TO THE BOARD
A94.06, A97.08, A94.11, A75.00 1 | ORDER APPOINTING THE BOARD
A94.02, A92.21 2 | APPLICATION FOR REVIFW OF DISCHARGE
3 LETTER OF NOTIFICATION
HEARING DATE . CASE NUMBER 4 BRIEF OF PERSONNEL FILE
24 APR 03 FD2002-0032 COUNSEL’S RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF
PERSONAL APPEARANCE
TAPE RECORDING OF PERSONAL APPERANCE HEARING

 

 

 

APPLICANT'S ISSUE AND THE BOARD'S DECISIONAL RATIONAL ARE DISCUSSED:ON THE ATTACHED AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE,

 

 

REMARKS

Case heard at Andrews AFB, MD

Advise applicant of the decision of the Board and his rigth to appeal to the Board for Correction of Military Records.

CU TNIDE AG artes a } 7 T Stow aA TDD AG ONAN DoOremMneNT

 

 

 

 

 

 

 

INDORSEMENT DATE: 28 APR 03
To.
SAF/MIBR SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL
550 C STREET WEST, SUITE 40 AIR FORCE DISCHARGE REVIEW BOARD
RANDOLPH AFB, TX 78150-4742 1535 COMMAND DR, EE WING, 3”° FLOOR
ANDREWS AFB, MD 20762-7002
AFHQ FORM 0-2077, JAN 00 (EF-V2) Previous edition will be used.
CASE NUMBER

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE | py9992-0032

GENERAL: The applicant appeals for upgrade of discharge to Honorable and for a change in the Reason
and Authority for the discharge. The applicant’s case was considered by the Discharge Review Board
(DRB), at Andrews AFB, MD, on April 24, 2003. The applicant appeared before the DRB with counsel,

The attached brief contains available pertinent data on the applicant and the factors
leading to the discharge.

FINDINGS: The DRB grants in part and denies in part the requested relief. The DRB finds that the
evidence of record and that provided by the applicant substantiates, in part, an inequity Justifying an
upgrade of the discharge. The applicant’s discharge will be upgraded to General (under honorable
conditions).

ISSUES: The applicant was discharged with an under other than honorable conditions (UOTHC) service
characterization from the Air Force pursuant to a request to resign in lieu of court-martial. The applicant
had been accused of being absent without leave (AWOL) and of making several false official statements to
his superiors in connection with his AWOL. The applicant subsequently submitted a resignation in lieu of
court-martial asking to be allowed to resign with a UOTHC service characterization rather than face a
court-martial. His request was granted. The applicant now contends that he was treated harshly, that the
characterization was unfair in light of his otherwise honorable service, and that the accusations should not
have been the subject of a court-martial.

CONCLUSIONS: The DRB concludes that the discharge was not completely consistent with the
procedural and substantive requirements of the discharge regulation, though the action was within the
discretion of the discharge authority.

The DRB carefully reviewed the facts and circumstances surrounding the case, to include the applicant’s
testimony concerning his recollection of the incidents that led to his eventual request to resign rather than
face a court-martial. The most compelling factor, in the view of the DRB, was the seriousness of the
applicant’s misconduct. More specifically, it was the applicant’s perpetual dishonesty that was of greatest
concern to the DRB. Making a false official statement to one’s supervisor is, of course, quite serious. The
false statements made by the applicant in an attempt to conceal his misconduct, particularly those made to
the base commander, fatally compounded the severity of his wrongdoing. Such misbehavior for an officer
is, quite simply, dishonorable. Even when given the opportunity to “set the record straight” during his
interview with agents from the Office of Special Investigations, he continued the deception. The DRB also
concluded that the applicant was well aware of the leave policy, having been thoroughly counseled by his
supervisor weeks before, and that he engaged in his misconduct in an effort to avoid being charged for 5
days of leave. Indeed, notwithstanding the applicant’s claim that he had hoped “to the last minute” that his
friend would be able to join him in Sicily, the DRB found that the applicant had a long standing plan to
meet his friend in Germany and to mislead his supervisor regarding his plans for leave. Despite the gravity
of the misconduct, given the sincerity of the applicant’s motivation for seeking an upgrade, the applicant’s
post-service accomplishments, and the circumstances of the case, the DRB concluded that the
characterization of the applicant’s service was too harsh.

Having found an inequity in the severity of the characterization of the discharge, the DRB upgraded the
characterization of the discharge to General (under honorable conditions) but declined to upgrade the
discharge to Honorable or to change the Reason and Authority for the discharge.

Attachment:
Examiner's Brief
FD2002-0032
DEPARTMENT OF THE AIR FORCE
AIR FORCE DISCHARGE REVIEW BOARD
ANDREWS AFB, MD

(Former CAPT) (HGH CAPT)

1. MATTER UNDER REVIEW: Appl rec’d a UOTH Disch fr USAF 91/05/20 UP AFR 36-12

(Resignation in Lieu of Court Martial). Appeals for Honorable and Change Reason
for Authority for Disch.

2. BACKGROUND:

a. DOB: 63/05/16. Enlmt Age: 25 8/12. Disch Age: 28 0/12. Educ:
BACHELOR DEGREE. AFOT: N/A. A-N/A, E-N/A, G-N/A, M-N/A. PAFSC: 8824 - Judge
Advocate. DAS: 89/03/16.

b. Prior Sv: (1) AFRes 89/01/18 - 89/03/14 (1 month 27 days) (Inactive).
3. SERVICE UNDER REVIEW:

a. Appointed to 1Lt and EAD 89/03/15. Svd: 02 Yrs 02 Mo 06 Das, all AMS.

b. Grade Status: Captain - 89/09/15

c. Time Lost: none.

d. Art 15’s: none.

e. Additional: none.

£. CM: none.

g. Record of SV: 89/03/15 - 89/12/28 Langley AFB MS (Semi-Annual)

89/12/29 - 90/06/28 Langley AFB MS (Semi-Annual)
90/06/29 - 90/12/28 Comiso AB DNMS' (Semi-Annual) REF
(Discharged from McGuire AFB)

h. Awards & Decs: AFTR, AFOUA, NDSM, AFAM, AFOSSTR.

1. Stmt of Sv: TMS: (02) Yrs (04) Mos (03) Das
TAMS: (02) Yrs (02) Mos (06) Das

4. BASIS ADVANCED FOR REVIEW: Appln (DD Fm 293) dtd 02/01/23.
(Change Discharge to Honorable & Change the Reason and Authority for
Discharge)

ISSUES ATTACHED TO BRIEF.
FD2002-0032

ATCH ;
1. Brief In Support of Application.
2. Six Letters of Recommendation.

02/04/26/ia
FD2002-0032

BEFORE THE AIR FORCE
DISCHARGE REVIEW BOARD

IN RE APPLICATION OF

Docket No. __

|
!
|

 

BRIEF IN SUPPORT OF APPLICATION
FOR
UPGRADE OF DISCHARGE

1) Pursuant to,10 USC 1553, and Department of Defense Directive 1332.28, codified at

32 CFR 70@e MWhereby submits this application to upgrade his discharge
from Other Than Honorable (OTH). to Honorable, and to change the reason for his
discharge to a voluntary resignation. This request is made for proprietary and equitable
reasons.

   
  

ig an attorney in Tampa, Florida, and a former Captain in the United
States Air Force Judge Advocate General’s (JAG) Corps. He served slightly over two
years on active duty, at Langley AFB, VA, and at Comiso Air Base, Italy. With the
exception of the incident that gave rise to his release from active duty, he served
admirably, as witnessed by his Officer Performance Reports (OPRs).

OUEMMNI csigned his commission in lieu of court-martial, as a result of charges

that were brought up against him in Comiso. If it were not for the serious nature of these
allegations, this incident would almost be comical. However, because of the deleterious
affect this has had on his life, the incident is tragic.

4) While serving as a legal assistance officer in Comis Qty panned on taking
leave over the Christmas holidays. He had taken leave one time prior to that, and not at

Comiso. He advised his supervisor of his intentions, as was required in order to cover his
job while he was — re during the holiday period was certainly no
mystery.

re on leaving Friday morning for a train nde to Munich, Germany,
where he "meet his fiancée, who had flown over from the states. Elis plan was to
remain on leave through the Christmas holidays, and return immediately alter the New
Year.

6) Ashe was packing to lea var oticed that his train ticket, written in
Italian, required a late Thursday, not early Friday, departure. As he would be gone either

way on Friday, he did not believe it was relevant, and he left Italy.

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FD2002-0032

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7) On Wednesday, December 26 BEM -< with the Area Defense Counsel (ADC) before submitting this

request. The ADC advised him (erroneously) that a court-martial conviction would have
led to the loss of his license to practice law. Such is simply not the case. [In addition. the
FD2002-0032

AEE te aL 60 PEERED tee RB RES,

ADC told him that his supervisor dae yas trying to make an example out of
ee: order to impress the base commander, and obtain a strong OPR.

15) The decision to process Rim vith an OTH discharge, and the threat to
prosecute him at court-martial, were clearly an unwarranted over reaction to an otherwise

mild breach of conduct. I certainly do not wish to downplay his role in this incident, and
he has accepted responsibility for it, but an OTH is a draconian punishment.

i a number of officers come to his defense during this incident. i

Those letters are attached. As I am sure this Board is aware, on a small base such as 2
Comiso, it required exceptional courage for these officers to come forward in this
manner. However, QR performance of his duties clearly warranted such
intervention, and these officers were willing to take whatever risk was necessary to
ensure that justice was done. Unfortunately, it was not. These statements are attached to
this petition.

 

 

17) The OTH is contrary to Jaw, in that the evidence did not comport to the allegations,
and an OTH is outside the normal range of punishments for what occurred in this case. |
also submit this as a matter of equity, as it appears clear that, even if the allegations were
true, such punishment was not warranted for such an exceptional officer.

18) Faced with the potential loss of his law license, and a supervisor intent on court-
martialing him and making an example out of him, QM: hose the path of least
resistance. Perhaps at the time such a move made sense. However, in hindsight it was not
the right decision. The ineradicable scar of an OTH is simply uncalled for under the
circumstances of this case. Since his — returned to the private
practice of law, and moved on with his life. However, he is proud of the time he served
on active duty, and proud of his accomplishments. He should be able to tell others of his
work as an Air Force Officer, and should be able to tell them that he received an

Honorable Discharge. I thank you for taking the time to consider this matter, and look
forward to presenting this case in person before the Board.

 

1AGB i, with iiie «YB en caper Sia aR iestave,

   

Kindest Regards,

 

 

WEC/pc

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