AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

 

 

 

 

 

 

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TISSUES A94.06 INDEX NUMBER A67.50

   

 

ORDER APPOINTING THE BOARD
APPLICATION FOR REVIEW GF DISCHARGE
LETTER OF NOTIFICATION

BRIEF OF PERSONNEL FILE
COUNSEL'S RELEASE TO THE BOARD

op [Po le

 

ADDITIONAL EXHIBITS SUBMITTED AT TIME OF
PERSONAL APPEARANCE

 

TAPE RECORDING OF PERSONAL APPEARANCE

 

HEARING BATE CASE NUMBER

01 Feb 200 FD-2004-00306

 

 

 

   

 

   

 

 

 

 

Case heard at Washington, D.C.

Advise applicant of the decision of the Board, the right to a personal appearance with/without counsel, and the nght to
submit an apphcation to the AFBCMR.

Names and votes will be made available to the applicant at the applicant’s request.

       
 

 

  

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL

SAF/MRBR

: AIR FORCE DISCHARGE REVIEW BOARD
330 C STREET WEST, SUITE 40 1535 COMMAND DR, EE WING, 3RD FLOOR
RANDOLPH AFB, TX 78150-4742 ANDREWS AFB, MP 20762-7002

 

 

 

 

 

AFHQ FORM 0-2077, JAN 00 (EF-V2) Previous edition will be used
CASE NUMBER

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE | pny 5094-00306

GENERAL: The applicant appeals for upgrade of discharge to honorable, to change the reason and
authority for the discharge, and to change the reenlistment code.

The applicant was offered a personal appearance before the Discharge Review Board (DRB) but declined to
exercise this nght.

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge.
FINDINGS: The Board grants partial relief; the discharge is upgraded to honorable.

The Board finds that neither the evidence of record nor that provided by applicant substantiates an
impropriety that would justify a change of discharge. However, based upon the record and evidence
provided by applicant, the Board finds the applicant’s discharge inequitable.

Issue 1. Applicant contends discharge was inequitable because it was too harsh. The records indicated the
applicant received two Articles 15 for misconduct, separated by a 15-month period. His first Article 15 was
for underage drinking and failure to go. The last one was for off-base public indecency and reckless driving.
Applicant disputed the validity of the second Article 15 claiming that the elements of the alleged offenses
were not satisfied and he had not willfully committed the acts. Because of his claimed innocence, he felt
discharge was too harsh. With regard to this Article 15, the DRB disagreed with the applicant’s assertions,
and concluded the misconduct was a significant departure from conduct expected of all military members.
The characterization of applicant’s discharge based on this alone might otherwise have been found to be
appropriate were it not for a separate set of circumstances, as reflected in Issue 2 below.

Issue 2. The record reflects that part of member’s punishment on his first Article 15 was a 30-day restriction
to base. Member was subsequently tried by Special Court Martial on two specifications, for allegedly
violating restriction to base, and making a false official statement regarding his whereabouts. He pled not
guilty, and was found not guilty, to both charges. Nevertheless, he remained assigned to base details and
was never returned to his primary duties or any other career field duties for the 13-month period until his
discharge. It was during the 9" month of being assigned to base details that his second Article 15 offenses
occurred off base. After the local police transferred jurisdiction to the base, member recetved the Article 15
and was recommended for discharge. While the DRB did not condone applicant’s misconduct, they took
note of the applicant's duty performance and concluded it was inequitable to fail to return him to his primary
duties or other similar duties following his court martial acquittal. Failure to do so may have contributed to
his subsequent incident of misconduct. The Board therefore concluded the characterization of discharge was
inequitable on this basis alone. The Board did not however feel there was sufficient basis on which to
change the reason and authority for the discharge, or to change applicant’s reentry code.

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, the Board further concludes that the overall quality of
applicant’s service is more accurately reflected by an Honorable discharge. The applicant’s characterization
should be changed to Honorable under the provisions of Title 10, USC 1553.

Attachment:
Examiner's Brief
FD2004-00306

DEPARTMENT OF THE AIR FORCE
AIR FORCE DISCHARGE REVIEW BOARD
ANDREWS AFB, MD

(Former AB) (HGH Al1C}
MISSING DISCHARGE DOCUMENTS

 

1. MATTER UNDER REVIEW: Appl rec'd a GEN Disch fr Holloman AFB, NM on 29 Jan 99
UP AFI 36-3208, para 5.50 (Pattern of Misconduct}. Appeals for Honorabie
Discharge, and to Change the RE Code, Reason and Authority for Discharge.

2. BACKGROUND:

a. DOB: 17 Jui 77. Enlmt Age: 18 2/12. Disch Age: 21 6/12. Educ: HS DIPL.
AFOT: N/A. A-Unknown, E-Unknown, G-Unknown, M-Unknown. PAFSC: 1N031 -
Intelligence Application Apprentice. DAS: Unknown.

b. Prior Sv: (1) AFRes 19 Sep 95 - 2 Apr 96 (6 months 15 days) (Inactive).

3. SERVICE UNDER REVIEW:

a. Enlisted as AB 3 Apr 96 for 4 yrs. Svd: 2 Yrs 9 Mo 27 Das, all AMS.

b. Grade Status: AB - 16 Nov 98 (Article 15, 16 Nov 98)
Amn - 26 Aug 97 (Article 15, 26 Aug 97)
AlC - Unknown
Am - Unknown

c. Time Lost: None.

da. Art 15's: (1) 16 Nov $8, Holloman AFB, NM - Article 113. You did, at
or near Tularosa, New Mexico, on or about 10 Oct 98, at
or near the 500 block of St. Francis Street, operate a
vehicle, to wit: a 1997 Dodge Neon, in a reckless manner
by wrongfully driving your vehicle. in the oncoming lane
of traffic on St. Francis Street. Article 134. You
did, at or near Tularosa, New Mexico, on or about: 10 Oct
98, while in the driver's side of your 1997 Dodge Neon,
willfully and wrongfully expose in an indecent manner to
public view, your genitals. Reduction to AB, forfeiture
of $100.00 pay, and 20 days extra duty. (Appeal/Denied)
(No mitigation)

(2} 26 Aug 97, Holloman AFB, NM - Article 92. You, who
knew or should have known of your duties, on or about 17
Jul 97, were derelict in the performance of those duttes
in that you willfully failed to refrain from drinking
alcoholic beverages while under the age of 21 years, as
it was your duty te do. Article 86. You did, on or
about 17 Gul 97, without authority, fail to go at the

time prescribed to your appointed place of duty.
FD2004-00306

You did, with the intent to deceive, make

Article 107.
to SMSct -slaaneaggeabiielinlaatii, an official statement, to

wit: "I have not been drinking at any time since the
flight social event," or words to that effect, which
statement was totally false and was then known by you to
be so false. Reduction to Airman, 30 days restriction,
and a reprimand. {No appeal) (No mitigation}

@. Additional: Unknown.

£. CM: Unknown.

g- Record of SV: Unknown,

h. Awards & Decs: AFTR, AFOUA W/1 BOLC.

i. Stmt of Sv: TMS: (3) Yrs (4) Mos (11) Das
TAMS: (2) Yrs (9) Mos (27) Das

4. BASIS ADVANCED FOR REVIEW: Appin (DD Fm 293) dtd 28 Jul 04.
(Change Discharge to Honorable, and Change the RE Code, Reason and Authority

for Discharge}

 

ISSUES ATTACHED TO BRIEF.

ATCH

Applicant's Issues.

Statement of Material Contentions.
Supplemental Report.

Police Report.

two Police Officer Statements.
Blood Alcohol Test Results.
Traffic Citation.

Record of Nonjudicial Punishment.
Tularoga Map & Descriptions.

Wm~IN nw BR

TSEPO4/ia
LY - | | —_ . rp 2605 oo 32

TIME CONSIDERATIONS

 

 

Applicant was discharged from the Air Force on January 1999, based on the
: charges that are being claimed to, be injust or in error (Incident for wich discharge

took place occured on 10 October 1998). Understanding that there is a 3 year time
limit for review by the AFECMR , applicant. requests for the AFBCMR to consider the
allegations for relief because it is in the interest of justice and offers: the
Statements “provided as the factors that inhibited applicant from pursueing corrective

_ action within the time frame permited.

1. Shortly after discharge (Jan. 1999) applicant was diagnosed with an mental

illness and consequently commited to an psychiatric institution. Such condition

prohibited applicant from exercising rational judgement as to completing day to day
activities and was the factor of applicant not being able to make such corrective

claims to the AFBCMR for its consideration within the specified time period allowed.
Tt has. only been recently that applicant's condition has improved to such a state.

to alloy applicant to persue corrective claim action through the AFBCMR.

2, it is in the interest of justice for the AFBCMR cc consider applicants request

for review. In‘ the applicants submission .nformational brief, applicant states that

an error or injustice took place in that the Art. 15 tribunal incorrectly applied a

violation of articles even though they did not meet the requierment _ for reckless

driving (as to art. 111) and did not follow standard set forth by. jurisprudencé as

to what military justice has considered to be indecent exposure:

Applicant prays that the AFBCMR accept the explanation provided as. to the reasons

why applicant was unable to file for corrective action within the time Limit permited

and hears applicants allegations for relief.
“ - | Fp 260 -co Sct

PERSONAL STATEMENT

 

d, joined the US. Air Force after my graduation from high school, following in

the line of military service of my father and grandfather who both served inthe army.
I did not feel that, at the time. college was appropriate for me. A sense of duty and
adventure is what attracted me to the US Air Force and after speaking with the Air Force
recruiter, In which I showed interest in the intelligence career field, I enlisted.

For I believed, as I do today, that the military is a great opportunity for people

to travel, meet new people, learn new skills among a host of other posibilities that

are open to those who want to serve all the while showing patriotism to this country.

After 6 months of inactive differed enlistment, I finally entered active duty
service on April 1996. After basic training completion I was pleased to find out
that my request for apprenticeship to the intelligence applications program had been .
eranted. Graduating from the intelligence applications school at Goodfellow AFB, this
has been one of my proudest moments in my life. I was assigned to duty at Hollowman
AFB New Mexico, attached to the 49 Operations Support Squadron (OSS) 8th targets -
intelligence section. Things were relatively good. I was proud to serve my country
and enjoyed my job and did well in it. Passing my intelligence applications exam-
inations (CDC's) and obtaining recognition for exellence involving operational
exercises. Also, shortly after assignment, I began to attend college at New Mexico
State University (NMSU-A) and had accumilated over 60 mits majoring in political

science.

On July 17 1997 { exercised poor judgement and consumed alchoholic beverages
to mark my 20th birthday. Such consumption was an influence of my tardiness for ~
duty that morning and while in such error, I denied drinking when I was confronted.
I took full responsibility for my actions, acknowledgeing my drinking incident and
seeking rehabilitative counseling. As a consequence to my erronious behavior I
recieved an Art. 15, in which it stipulated a reduction of rank from E-3 to E-2 and ©
a 30 day on base restriction. While complying with the stipulations of the Art. 1>
(on base restriction) I was falsely accused of violating said stipulation. I denied
the allegation and a court. marshall proceded. Inmidiately, during this time, I was
taken of intelligence duty and put to work in the Consilidated Dorm Management (CDM)
department (CDM was under the Civil Engineering Squadron (CES}) assigned cleaning
duties in the dormitories, with renewal assignment to CDM being ordered weekly by -

my squadron (OSS). My rapport and relationship with my duty squadron (49 OSS), in

particular higher command to include my first sergeant, plummeted and contact was
a , | Cp 2004-00 306

  
  
  

cut off, forever ending any future reconciliation between us.

J was acquited of the charges in the court marshall. When I continued to

be assigned to janitorial duties at CDM, after court marshall acquitzl, I protested
stating that the court marshall determined that the allegations against me were
false and without merit and that I should be reassigned back to my career field duty
station. For the intelligence flight had no further basis for punitive assignment :

and thus such assignment was unjust. My claims for reassignment fell on deaf ears.

Seéing that my request for reassingment to duty in my career field, post
court marshall acquital, was going nowhere I requested for permanent assignment to the
49 Civil Engineering Squadron CDM personnel flight. Already establishing rapport

with CDM personnel, due to contact from cleaning assignment, and notans Dy strong

bi

  

work ethic. I was approved for reassignment by CES . squadron commander,
— joined CDM personnel and was now part of the out-process inspection team for
the dormitories at Hollowman AFB. During this time I received good progress reports

arid was awarded the meritorious unit ribbon all the while I continued with my
education at NMSU college.

At the end of the following year, in 1998, is when the incident in question took |
place. On Oct. 10 1998 I, accompanied by my girlfriend, went to a local bar on the

outskirt of the village of Tularosa. Leaving the establishment around 3:30 AM,

after having consumed a few drinks,.with the intention of heading back to my girlfriends”

house in Alamagordo, which is roughly 6 miles south of Tularosa. When we entered

the vehicle we briefly got intimate and during this time is when I took of my pants

The brief intimate encounter lasted less than’ 3
From *

(still wearing my thermal shirt).
minutes (a few embraces, I took my parits of and then started the ignition).

which I began to drive to her house, as it was always the intention, to conclude tke

encounter. Unfortunately I failed to put back on my pants while I was driving back ,
to my girlfriends house, rationalizing that this was in the spurt of the moment, and
the actual drive would only take 7-8 minutes, that It was night time and would be

traveling inside a car with my shirt on, I did not put my pants back on.

I drove through the village of Tularosa, on my way to Alamogordo. Driving, at

that time in the proper lane for traffic, following the gradual curving of the road

to the left (curving southbound) is when the incicent took place. In that particular

moment my girlfriend suddenly reached over from the right side (passenger) and

embraced me while’in the course of driving. Such action, the sudden embrace fom my

right side, consequently made me steer to the left. This action caused me to drive

off course’ to the lane for on comming traffic for 3-5 seconds. This 3-5 seconds

was the time it took me to make corrective action to steer the vehicle back to the
Fp2c04r- 20306

“designated lane for traffic.

it was this action that the Tularosa police wfficer witnessed and therefore pulled
mé: over. I was asked to show my drivers licence, registration and my proof of .

- insurance. I gave ‘the officer my military ID, for that was in my immidiate grasp (ny
wallet which contained my drivers licence was in the back seat inside the pants that —

I had previously taken off) and began to reach to the back to obtain my drivers licence
and to retrieve my pants, all the while my passenger is obtaining the registration and.

proof of insurance documentation from the glove compartment. At this time is when the
officer asked if I had been drinking to which I replied that I had. At that point the
officer no longer appearedto be interested in seeing my documentation and asked me to
step out of the vehicle. I reached in the back seat for my pants and put them on before
I got out of the vehicle. The officer asked me, once I got out, how much I had to
drink and I replied that I had drank a few drinks about 2-3. The officer then proceded

to do a series of field sobriety tests,

Officer QS was unsatisfied with my responce to the sobriety test and placed
me under arrest. Shortly afterwards, more police officers arrived on scene and I was
given another field sobriety test by a more senior officer (Sheppard). I passed the
test to the senior officers satisfaction, and as a consequence the senior officer stated
that only a ticket (infraction) was necessary. It was then that the ranking official
madév.the cision, shortly after the second sobriety test. a a iter stated that
since the arresting officer had already placed me under arrest (ei had read me my rights)
to go ahead and proceed with the arrest. I was booked in the city of Alamagordo and
given an alééhod. breath test. The result of my blood alcohol. content (BAC) resulted
in 0.04 and consequently the DWI charges were dropped. The village of Tularosa
transferred juristiction to Holloman AFB and consequently I was charged with the articles
that are now in question . That is a summary of the events that took place.

 

I, acting on the advice of counsel gin area defense), opted for Art.15
proceedings and the commander of the 49th CES squadron which I was attached ~
—_ _ ain presided over the hearing. I claimed that I was not guilty of the charges

brought up against me (violation to Art. 111&134 respectively). Stating, in relation
to the Art. 111 charge, that it was not my fault and It did not meet the specifications
to be found guilty of said article. In relation to the Art. 134 charge, I claimed that
the allegation never took place for I never exposed myself indicently (genitalia or

 

 
 

otherwise) to public view, nor did the incident constitute charge under the article.

 

: Maettisacreed and found me guilty of the charges handing down the
punishement of reduction of grade, an. monetary fine and 30 days extra duty. I appealed

 

Wii ovistics overall commander (CES is

my commanders decision to higher commendgiiil
Fo2e0e - C030"

Mcommand). I presented NERA 3 arguments, stating ena

was not guilty of the offenses charged.
with the initial findings of conviction, although changing the wording of Art.

charge and deducting the punitive monitary fine.

   
  

  

sn |

(who had recently been assigned to area

 

Counsul at the time was ian
_ defense from the prosecuting offices and knew me unofficialy from my prior court
marshall). I explained to counsel the issues involved and claimed my innécence to
— Mik advised that I should accept Art. 15 proceedings
Stating that,

 

the offenses —a_ ;
as the legal venue for proceedings instead of the court marshall.

although she felt that there was a strong basis for argument of the art. 134 charge
that the art. 111 charge was arbitrary and would be up to personnel discretionary
judgement to decide the matter. Citing that if I took the charges to an court
marshall and if they did in fact convict me, even if the only found guilty in the
art. 111, I would be discharged unfavorably. By.this she meant discharged as a bad
conduct or otherwise because court marshalls were more sever than Art.15 proceedings.

I emphatically deny the articles charged. Not only was it not my fault as to
art. 111 but I took corrective action to manuevre the vehicle back to the proper
lane for traffic. By no means were my actions wanton and willfull as required by
art. ill. Nor did my actions support the charge of art. 134 indecent exposure, for

I did not expose myself indecently to public view as charged. The article even
ae was .reworded to its present form -

»

 

caused confussion on appeal +o Sie
because it did not conform with the specifics of the incident and even in its present

form lacks foundation.

When I was informed that I would be administratively discharged from the
military due to the articles I was devestated. I felt wronged by conviction of
mentioned articles and took this as a personal loss. I sought relief from Holloman
AFB Chief First Sergeant , stating that the discharge was unwarranted or at least to
harsh. I cited my meritorious service, my recognition in the intelligence field, noted
service in CDM, my strong work ethic and commitment to duty, to no avail. I was
discharged shortly after. Within the month after discharge I was commited for psy-

chological reasons and continue to be so although my condition is improving

_ In the end I am proud of my military service and am glad to have served my

country, irregardless of the negative. With this I pray that the AFBCMR grant me the

releif that I seek based on the information provided.
FU 2004¢-G0B06

I certify that the comments providéd are true and accurate, to

a

  

‘the best of my belief.

Date