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AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

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Former Amn 

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PERSONAL APPEARANCE 

RECORD MVIEW 

NAME OF COUNSEL AND OR ORGANIZATION 

ADDRESS  AND OR ORGANIZATION OF COUNSEL 

TYPE 

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No 
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MEMBER SITTING 

HEAIUNC DATE 

CASE NUMBER 

22 Oct 2004 
APPLICANT'S  ISSUE AND TW. BOARD'S DECISIONAL R4TIONAL ARE DISCUSSED OX 'ME ATTACHED  AIR FORCE DISCliAKGE REVIEM'  BOARD f)ECISIONAL  RATI0N.U.E 

FD-2003-00270 

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Case heard at Andrews AFB MD via video teleconference with Travis AFR CA. 

Advise applicant of the decision of the Board and the right to submit an application to the AF'BCMR. 

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INDORSE.~IENT 

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FROM: 

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DATE:  10/25/2004 

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SAFIMRBR 
550 C STREET WEST, SUITE 40 
RANDOLPH AFB, TX 78150-4742 

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL 
ALR  FORCE DISCHARGE  REVIEW BOARD 
1535 COMMAND D R  EE WING, 3RD FLOOR 
ANDREWS AFB, MD 20762-7002 

AFHQ FORM 0-2077, JAN 00 

(EF-V2) 

Previous edition will be used 

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMBER 

FD-2003-00270 

GENERAL:  The applicant appeals for upgrade of discharge to honorable. 

The applicant personally appeared before the Discharge Review Board (DRB) via video-teleconference from 
Travis AFB CA with Andrews AFB MD on 22 October 2004. 

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

The following additional documents were submitted during the hearing: 
Exhibit 5:  Loyola Law School Transcript, 13 September 2004 
Exhibit 6.  CA St 
Exhibit 7.  Resu 

ch Transcript, 22 October 2004 

FINDINGS:  Upgrade  of  discharge  to  honorable  is  denied;  however,  the  Board  grants  upgrade  of  the 
discharge to general, under honorable conditions. 

The  Board  finds  that  neither  the  evidence  of  record  nor  that  provided  by  the  applicant  substantiates  an 
inequity  or  impropriety  at  the  time  of  issuance  that  would  justify  a  change  of  the  basis  for  discharge; 
however,  after  careful  review  of the  evidence in the record  and  that  presented  by  the  applicant,  the board 
finds that there are certain equitable factors which significantly mitigate the egregiousness of the applicant's 
offenses and justify  upgrade of the discharge characterization  from under other than honorable conditions to 
under honorable conditions (general). 

ISSUES: 

Issue 1:  The applicant contends discharge was inequitable because his chain of command improperly 
(arbitrarily and capriciously) decided to punish him more severely than was warranted because of a desire to 
make an example of him.  Contrary to the applicant's assertions, the DRB believes his chain of command's 
actions in prosecuting him were reasonable given the seriousness of the charges against the applicant. 

Issue 2:  The applicant contends his personality disorders substantially contributed to causing his misconduct 
and that the Air Force should have diagnosed him earlier, which would have resulted in his receipt of an 
honorable discharge. The DRB viewed the applicant's personal problems as a matter in extenuation and 
mitigation of the reason for discharge because they contributed significantly to his misconduct.  An earlier 
diagnosis might have resulted in a more favorable discharge characterization.  Absent the personality 
disorders he may not have committed the misconduct or had such a difficult relationship with his chain of 
command.  Nonetheless, the applicant did engage in serious misconduct for which he was legally and 
mentally responsible. 

Issue 3:  The applicant contends he was not guilty of some of the charged offenses or was guilty of a lesser 
included offense.  This contention does not change the fact the applicant voluntarily submitted a request for 
discharge rather than face a court-martial and that he knew he faced a possible under other than honorable 
conditions discharge.  Nor does it change the fact that there are a significant number of charges which the 
applicant admits he did commit. 

CONCLUSIONS:  The  Discharge  Review  Board  concludes  that  the  discharge  was  consistent  with  the 
procedural  and  substantive requirements  of  the  discharge regulation  and  was  within  the  discretion  of the 
discharge authority and that the applicant was provided full administrative due process. 

However,  in  view  of the  foregoing  findings regarding  the  applicant's  personal  mental  problems  and  their 
direct  relationship  to  the  misconduct,  the  Board  further  concludes  that  the  overall  quality  of  applicant's 
service  is  more  accurately  reflected  by  a  general  discharge under  honorable  conditions.  The  applicant's 
characterization should be changed to general, under honorable  conditions under the provisions  of Title  10, 
USC 1553. 

Attachment: 
Examiner's Brief 

DEPARTMENT OF THE AIR FORCE 

AIR  FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB, MD 

(Former AMN)  (HGH AMN) 

MISSING  DOCUMENTS 

1.  MATTER UNDER REWIEW:  Appl rec'd  a UOTH Disch fr USAF 31 Mar 99 UP AFI 36- 
3208, chapter 4  (Discharge in Lieu of Court Martial).  Appeals for Honorable 
Discharge. 

2.  BACKGROUND: 

a. DOB: 16 Feb 77.  Enlmt Age: 21 2/12.  Disch Age: 22 1/12. Educ: HS DIPL. 

AFQT: N/A.  A-90,  E-91,  G-96,  M-62. PAFSC: 3P031 -  Security Apprentice. 
DAS: 29 Sep 98. 

b.  Prior Sv: (1) AFRes 12 May 98 -  12 May 98 (1 day) (~nactive). 

3.  SERVICE UNDER REVIEW: 

a.  Enlisted as Amn 13 May 98 for 4 yrs. Svd: 0 Yrs 10 Mo 19 Das, of which 

AMS is 7 months 24 days  (excludes 2 months 25 days lost time) 

b.  Grade Status:  None. 

c.  Time Lost:  28 Dec 98 -  23 Mar 99 (2 months 25 days). 

d.  Art  15's:  None. 

e.  Additional: 

-  (Examiner's Note:  Memorandum For 95 ABW/CC Lists 

an LOR, Dated 6 NOV 98; however, the reason was not listed and the 
document is missing from the file). 

f.  CM:  None. 

g.  Record of SV: None. 

(Discharged from Edwards AFB) 

h.  Awards &  Decs:  AFTR, FPBOB. 

i.  Stmt of Sv:  TMS:  ( 0 )   Yrs  (7) Mos  (25) Das 
TAMS:  (0) Yrs  (7) Mos  (24) Das 

4.  BASIS ADVANCED FOR REVIEW:  Appln  (DD Fm 293) dtd 15 May 03. 

(Chznge Discharge to Honorable) 

Issue 1:  It is my contention that Security Forcr;  personnel failed to 

provide fair and equal treatment under military law because of a conflict of 
interest.  Specifically, my charqes ter,Sed  to be more severe because of the 

desire to make an example out of my misconduct within the squadron. 

Issue 2:  During my first few months at Edwards AFB, I saw health care 

professionals on three separate occasions, yet was never given a full 
psychiatric evaluation.  After being incarcerated I was finally evaluated by a 
team of psychiatrists, whose findings indicated that my personality disorders 
indeed disqualified me from active duty.  Had this information been known in my 
early months at Edwards, I would likely have qualified for an administrative 
~ e p a r ~ t i o n .  My total service in the Air Force amounted to less than 8 months. 

Issue 3:  Charge I, desertion, is erroneous.  I was AWOL for only 21 days, 

and voluntarily turned myself in. 

Issue 4:  Charge I11 is false.  I had both a doctor's note and my first 

sergeant's permission to take leave until November 6 t h ,   1998.  I was not 
derelict in the performance of my duties, since I was not even required to be on 
base during the time of the alleged offense.  This charge is the result of 
miscommunication between my first sergeant and the squadron commander as to when  ' 
I was due to arrive on base. 

ATCH 
1. School Transcript. 
2. BA Degree. 
3. AA Degree. 
4. Omicron Delta Epsilon Certificate. 
5. Academic Honors Recognition. 
6. Masters Degree Acceptance Letter. 
7. Law School Acceptance. 
8. Memorial Award. 
9. FBI/DOJ Clearance. 
10. Two Letters of Support. 
11. Credit Report. 
12. Resume. 

I 

CHARGE SHEET 

I.  PERSONAL DATA 

95th Security Forces Squadron 

;
 Force ~ a s e .  California (AFMC) 

I Edwards ~ i

7.  PAY  PER  MONTH 
- 

a.  BASIC 

b.  SEAIFOREIGN DUTY 

C.  TOTAL 

13May98 

1 

4 

8.  NATURE  OF RESTRAINT  OF ACCUSED 
Pretrial Confinement 
Restriction  to Edwards 

Air Force Base,  CA 

9.  DATEIS) IMPOSED 
18  Jan 99 
6-10  Nov  98 

$0.00 

1  $1,075.80 

( 

VIOLATION OF THE UCMJ,  ARTICLE  85 

II.  CHARGES AND SPECIFICATIONS 

$1,075.80 

1 

9 %  

lo.  CHARGE:  I 

SPECIFICATION: 

1  CHARGE 11: 

I 

I 

In that AIRMA 
December  1998, without  authority and with  intent to remain away therefrom permanently, absent himself  from his unit, to wit: 
95th Security Forces Squadron, located at Edwards Air Force Base, California,  and did remain so absent in desertion until on or 
about 18 January  1999. 

5th Security Forces Squadron, United States Air Force, did, on or about 28 

VIOLATION OF THE UCMJ,  ARTICLE 9 1 

Specification  1 : In that AIRMA 
near Edwards Air Force Base, 

95th Security Forc 
ber  1998, was dis 
a superior noncommissioned officer,  then known by  the said AIR 

r o l

l

i n g  his eyes, and yelling at Staff sergean-during 

a counseling session. 

officer, who was then in the execution of  his office, by repeatedly interrupting Staff Sergeant 

Specification 2: 

In that AIRMA 

1999, was disrespectfu 
officer, then known by  the said AIRMA 

5th Security Forces Squadron, United States Air  Force,  at or 
t 
a 

who was then in the execution of  his office,  by  repeatedly calling him  "fuckhead" and saying 

"from now on, I'm going to call you  Fuckhead  Spina," or words to that effect. 

SEE ATTACHED CONTINUATION SHEET 

I 
I I

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C

C

U

S

E

(Last,  first,  MU 

R

 

Ill. PREFERRAL 

I  b.  GRADE 

1 c.  ORGANIZATION OF ACCUSER 

AFFIDAVIT:  Before me,  the unde signed,  authoriz  d by law to administer oaths in cases of this character,  personally appeared the 

above named accuser this  ~d day of  L'(lHy 

under oath that helshe is a person subject t o  the Uniform Code of  Military Justice and that helshe either has personal knowledge of 
or  has investigated the matters set  forth therein and that ihe same are true t o  the best of  hislher  knowledge and belief. 

, 19 

, and signed the foregoing charges and specifications 

i y p e d ~ a m e  of  Officer 

Air Force Flight Test Center 

Organization  sf Sfficer 

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.?!f;cial  Capacity to. Adminis!er.Oath 

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,,. 

, 

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~ ~ ? C m i i ~ 1 4 5 8 , A U G 8 4 i k F - - i i i /  iPerFGRMPbtG1 

EDITION  OF OCT  69 IS  ORSOLETE. 

Continuation of DD Form 458: 

CHARGE 11: 

VIOLATION OF THE UCMJ, ARTICLE 9 1 

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United States Air Force, at or nearTdwards Air Force Base, California, on or about 18 January 
1999, was disrespecthl in language toward Staff Sergean 
qoncommissioned officer, then known by the said AIRM 
superior noncommissioned officer, who was then in the execution of his office, by making 
derogatory comments to him and saying to him "how did a h c k  like you ever become a NCO," 
or words to that effect. 

o be a 

CHARGE 111: 

VIOLATION OF THE UCMJ, ARTICLE 92 

Specification: In that AIRM 
United States Air Force, who knew of his duties at Edwards Air Force Base, ~ a l i f k i a ,  on or 
about 5 November 1998, from about 2000 hours to about 0100 hours, was derelict in the 
performance of those duties in that he willhlly failed to perform any of his assigned tasks as it 
was his duty to do. 

5th Security Forces Squadron, 

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. . 

CHARGE IV: 

VIOLATION OF THE UCMJ, ARTICLE 1 17 

Specification 1 : In that AIRMAN 
United States Air Force, did, at or near Edwards Air Force Base, California, on or about 5 
November 1998, wrongfully use provoking words, to wit:  "typical Mid Western dumbass with 
no education,"  "dick,"  "fag,"  and "hey  Pokorney fuck off ass hick that hcks his mother,"  or 

words to that effect, towar&  Airman First  la-nited States Air Force. 

95'h Security Forces Squadron, 

Specification 2: In that ~
United States Air Force, did, at or near Edwards Air Force Base, California, on or about 28 
December 1998, wro 
rds, to wit: "mother fucker," or words to that 
effect, towards Ainna 
nited States Air Force. 

5
Security Forces Squadron, 

M

w

R

9

'

~

 

CHARGE V: 

VIOLATION OF THE UCMJ, ARTICLE 134 

Specification 1 : In that AIRMAN 
95"  Security Forces Squadron, 
United  States Air Force Base, was at or near Edwards Air Force Base, California, or about 5 
November  1998, disorderly. 

th 5  Secziiy Forces Squadron, 
E9;;ciiication  2:  In that AIRMAN 
United States Air Force, was, at or near ~ d w a r d s  Air Forcr, Base, Ca!iklnia,  on or about 18 
January 1999, disorderly. 

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