AIR FORCE DISCHARGE REVIEW BOARD HEARJNG RECORD 

ITIAL) 

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PERSONAL APPEARANCE 

YPE  GEN  X 

CoUNSF NAME OF COUNSEL AND OR ORGANIZATION 

RECORD REVIEW 

ADDRESS  AND OR ORGANIZATION O F  COUNSEL 

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REARING  DATE 

CASE NUMBER 

EXHIBITS SUBMITFED TO THE BOARD 

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ORDER APPONTNG THE BOARD 
APPLICATION  FOR REVIEW OF DISCHARGE 
LETTER OF NOI~IFICATION 

ADDITIONAL  EXHIBITS SUBMITTED AT TIME OF 
PERSONAL APPEARANCE 

18 May 2005 
APPLICANT'S ISSUE AM) THEBOARD'S  DECISIONAL RATIONAL  ARE DISCUSSED ON THE ATTACHED  AIR  FORCE DISCHARGE REVIEW BOARD DECISIONAL  RATIONALE 

FD-2005-00033 

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3ase heard  via video-teleconference between  St. Augustine, Florida, and Andrews AFB, Maryland. 

Idvise applicant of the decision of the Board and the right to submit an application to the AFBCMR 

qames and votes will  be made available to the applicant at the applicant's request. 

ro: 

SAFIMKBR 
550 c s r n E F r  WEST. SUITE 40 
RANDOLPI1 AFB. TX 781 50-4742 

INDORSEMENT 

1  FRObI. 

DATE:  5/20/2005 

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SECRETARY OF THE AIR FORCE PERSONNEI.  COUNCIL 
AIR  FORCE DISCHARGE  REVIEW BOARD 
1535 COMblAND DR.  EE WING, 3RD FLOOR 
ANDRE\%S 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-2005-00033 

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 appeared and testified  before the Discharge Review Board ( D m ) ,  without counsel, via video- 
teleconference between Andrews AFB, Maryland, and St Augustine, Florida, on 18 May 2005. 

The following additional exhibits were submitted at the hearing: 

Exhibit #5:  Florida State University Transcript 
Exhibit #6:  Florida Criminal History Report 
Exhibit #7:  Two Tallahassee Communit 
Exhibit #8:  Letter of Reference from Dr. 
Exhibit #9:  Two Tallahassee Communit 
Exhibit # 10:  Florida Air National Guard Letter, 29 November 200 1 
Exhibit #l1:  Florida Air National Guard Letter, 1 1 February 2002 
Exhibit # 12:  Air Force Office of Special Investigations FAX, 12 September 200 1 
Exhibit #13:  Florida Air National Guard Letter, 28 March 2002 
Exhibit # 14:  FOIAIPA Response Letter, 23 August 2004 
Exhibit # 15:  DC2 Clearance Search Results, 18 August 2004 
Exhibit # 16:  Letter from Applicant, 30 November 2004, 4 pages 

8 May 2004 and 2 February 2004 

8 March 2003 and  19 May 2003 

Following  the  Board, the applicant  sent  an  additional  13 page  document  for the board's  consideration.  In 
order to be  sure the applicant received  every opportunity to present  his  case, the document was considered 
by the board members. 

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

FINDINGS:  Upgrade  of  discharge  and  change  of  reason  and  authority  for  discharge  and  change  of 
reenlistment code are denied. 

The  Board  finds  that  neither  the  evidence  of  record  nor  that  provided  by  the  applicant  substantiates  an 
inequity or impropriety that would justify a change of discharge. 

ISSUE: 

Issue  1.  The applicant contends discharge was inequitable because he did not commit the misconduct 
alleged.  Despite his assertion, two witnesses identified him as the offender and a witness provided  a license 
plate number that matched the applicant's.  His commander concluded he had committed the misconduct and 
initiated separation action for sexual perversion.  The DRB concluded the applicant had  committed the 
misconduct and that the misconduct was a significant departure from conduct expected of all military 
members.  The characterization of the discharge received by the applicant was found to be appropriate. 

Issue 2.  The applicant states that his discharge did not take into account the good things he did while in the 
service.  The DRB took note of the applicant's duty performance  as documented by  his performance reports, 
letters of recommendation, material submitted by the applicant and his other accomplishments.  They found 
the seriousness of the willful misconduct offset the positive aspects of the applicant's duty performance.  The 
D m  concluded the discharge was appropriate for the reasons which were the basis for this case. 

Issue 3.  The applicant contends his discharge should be upgraded because of his good citizenship and post- 
service activities.  The DRB was pleased to see that the applicant was doing well in college and has a plan 
for his future activities.  However, no inequity or impropriety in his discharge was found in the course of the 
hearing.  The DRB concluded the misconduct of the applicant was appropriately  included in the 
characterization of his term of service. 

Issue 4.  The applicant asserted that his right against self-incrimination under the 5th Amendment to the U.S. 
Constitution was violated by his commander's initiation of discharge proceedings before his civilian trial. 
His assertion is legally incorrect.  He did not incriminate himself and therefore no violation occurred. 

Issue 5.  The applicant alleges that he was denied an administrative discharge board, however he admitted he 
waived his right to a discharge board as a reserve of the Air Force and that he was not entitled to a discharge 
board under the relevant rules of the State of Florida Air National Guard at the time of his discharge.  He 
requested  a single discharge board be held in his case or that his AGR status not be decided until after a 
reserve discharge board, but his request was not granted and there was no requirement that it be granted. 

Issue 6.  The applicant alleges that he was discharged as a result of his reporting numerous problems with the 
maintenance and personnel practices in the Air National Guard.  However, he testified that an IG 
investigation determined that no unlawful retaliation had occurred, and the DRB opines he would have been 
discharged for his misconduct regardless of whether he had complained about the maintenance and 
personnel practices. 

Issue 7.  The applicant complains that he had  ineffective assistance of counsel because his military counsel 
had never represented an AGR member and was not located at the same installation.  Lack of prior 
experience in representing a particular  class of individual is not automatically disqualifying.  There is no 
requirement that a lawyer be located at the same installation as a client.  The applicant utilized  civilian 
counsel while retaining his military counsel and so received adequate legal advice. 

Issue 8.  The applicant asserts that his commander committed an impropriety because the commander told 
OSI action would be taken under the UCMJ.  The commander did not do so.  There is no requirement a 
commander take military justice action on an allegation.  Rule for Courts-Martial  306 specifically provides 
for administrative resolution  of allegations (including discharge) when a commander deems it appropriate. 

Issue 9.  The applicant believes that because the civilian court system dismissed his case, he should not have 
been discharged because there was no conviction or action tantamount to a conviction in his case. 
Unfortunately for the respondent, he is confusing two different grounds for discharge.  A member may be 
discharged for a civilian conviction or action tantamount to a conviction, but he was not discharged under 
that provision.  Instead, he was discharged after his commander made an administrative determination that 
he had engaged in sexual perversion based on two witnesses who identified him as the offender and a 
witness who provided  a license plate number that matched the applicant's. 

Issue  10.  The applicant alleges an impropriety occurred because he believes Article 27, UCMJ, concerning 
detail of trial and defense counsel, was violated in his case.  Article 27 is applicable to courts-martial, not 
administrative discharge board proceedings.  He also complains that he was denied effective assistance of 
counsel because his military defense counsel was collocated with, and rated by, another judge  advocate who 
the applicant claimed was advising his commander.  The Air National Guard allows assistant  staff judge 
advocates to represent members in discharge actions, and there is no evidence that the senior judge  advocate 
had improper involvement in the case. 

Issue 11.  The applicant asserts that because he was not tried for his actions in a civilian court, those actions 
may not be considered  for the purpose of characterizing his service.  Had his case resulted in judicial 

proceedings resulting in an acquittal or other action having the same effect, he would have been correct.  In 
his case however, the charges were merely dismissed which is not the same thing as an acquittal.  Because 
there was no adjudication in his case, there is nothing to prevent his commander from considering the 
applicant's  misconduct  in determining an appropriate service characterization. 

Issue 12.  The applicant claims that security regulations mandate certain notification and permission 
procedures be followed before a member with a high security clearance is discharged.  The regulations he 
mentions do not create any rights for a member in a discharge action, but are intended to protect against the 
disclosure of classified information.  The board was unable to discern any impropriety which acted to the 
prejudice of the applicant in the alleged failure of the government to proceed under such regulations.  The 
applicant was informed in the hearing that the video-teleconference  was not a secure means for transmission 
of classified material and that at least one member of the board possessed only a secret clearance.  The 
applicant was further advised that if he wished to pursue any classified aspects of his case beyond merely 
alleging a government failure to receive permission from security officials to proceed in his case, he should 
request a special secure forum to do so.  The applicant also alleged irregularities in the revocation of his 
security clearance, but such matters are beyond the Discharge Review Board's purview and are not relevant 
to the discharge action. 

Issue  13.  The applicant contends his discharge was improper because he did not receive a veteran's benefits 
briefing, a transition assistance briefing or a medical examination.  The board does not find that his receipt of 
such briefings would have changed his discharge and notes that the applicant has sought and received 
medical evaluation and treatment from the Veteran's Administration. 

Issue 14.  The applicant maintains that his commander did not comply with the requirement that all 
investigations "properly  and completely develop, substantiate and document all facts."  Contrary to the 
applicant's  contention at the hearing, his commander was not obligated to wait for a civilian adjudication 
before he took action on the applicant's case.  The commander received a completed AFOSI investigation 
prior to acting on the applicant's case. 

Issue  15.  The applicant complains of numerous errors in his "paperwork and subsequent DD-214."  The 
board gave the applicant the benefit of the doubt and considered the case as if the applicant's  records showed 
all of the awards he claims he was authorized but has no power to change the alleged errors in his 
paperwork. 

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.  In  view  of  the 
foregoing  findings the Board  further concludes that  there  exists no  legal  or equitable basis  for  upgrade  of 
discharge, thus the applicant's discharge should not be changed. 

Attachment: 
Examiner's Brief 

DEPARTMENT OF THE AIR  FORCE 

AIR  FORCE DISCHARGE REVIEW  BOARD 

ANDREWS AFB,  MD 

(Former TSGT)  (HGH TSGT) 

1.  MATTER  UNDER  REVIEW:  Appl rec'd a GEN Disch fr ANG Jacksonville, FL on 24 
Apr 02 UP AFI 36-3209, para 3.21.3.1 (Misconduct -  Commission of Serious Offense 
-  Sexual Deviation).  EXAMINER'S NOTE:  Two other paragraphs indicating reason 
for Discharge have been cited in his record. (para 3.13.2 -  Unsatisfactory 
Participation and para 3.21.1 -  Misconduct -  Minor Disciplinary Infractions). 
Appeals for Honorable Discharge, and to Change the RE Code, Reason and Authority 
for Discharge. 

2.  BACKGROUND: 

a. DOB: 13 Nov  67.  Enlmt Age: 17 0/12.  Disch Age: 34 5/12. Educ: HS DIPL. 

AFQT: N/A.  A-67,  E-67,  G-58,  M-76. PAFSC: 2A373A -  Tactical Aircraft 
Maintenance Craftsman. DAS: Unknown. 

b. Prior Sv: (1) AFRes 19 Nov 84 -  08 Oct 85  (10 mos 19 das) (Inactive). 

2) Enlisted USAF as AB on 09 Oct 85 for 6 years.  Extended on 

26 Oct 90 for 09 months.  Svd:  06 yrs 09 mos  0 days, all AMS.  AlC-(APR 
indicates) :  9 Oct 85 -  8 Oct 86.  SrA- (APR indicates): 26 Jul 87 -  25 Jul 88. 
Sgt-(APR indicates): 26 Jul 88 -  16 May 89.  SSgt -  12 May 91.  APRs: 9,9,9,9. 
EPRs:  5,5,5. 

3.  SERVICE UNDER REVIEW: 

a.  Enlisted ANG 1 Oct 93 for 6 years.  Extended 13 Jan 00  (period 

unreadable).  Svd: 08 Yrs 06 Mo 23 Das, of which AMS is 03 Yrs 02 Mo 19 Das. 

b.  Grade Status:  TSgt -  01 Apr 99 

c.  Time Lost:  None. 

d.  Art  15's:  None. 

e.  Additional: Civilian Police Report, 6 AUG  01 -  Exposure of Sexual 

Court Docket, 16 JUN 03 -  Hearing date 5 Dec 01, and 
Summons Issued 14 Nov 01. 

Organ. 

f .  CM:  None. 

g.  Record of SV: 06 Feb 99 -  05 Feb 00  Homestead ARS  Superior  (Annual) 

h.  Awards &  Decs:  AFAM, SAEMR, AFLSA W/2 BOLC, NDSM, AFOLTR, AFOSTR, SW 

ASIA SVC MDL W/3 BOLC, AFGCM, AFRESM w/M, NCOPMER, AFTR, KUWAIT LJIB  MDL  (SA), 
KUWAIT LIB MDL  (K), AFOUA W/V &  ~ / B O L C ,  ARFMSM, AFBMT HON GRAD RBN. 

i.  Stmt of Sv:  TMS: (16) Yrs  (02) Mos  (12) Das 
TAMS: (09) Yrs  (11) Mos  (19) Das 

4.  BASIS ADVANCED  FOR REVIEW:  Appln  (DD Fm 293) dtd 18 Jan 05. 

(Change Discharge to Honorable, and Change the RE Code, Reason and Authority 

for Discharge . ) 

Issue 1:  ISSUES ATTACHED TO BRIEF. 

ATCH 
1.  Applicant's Brief. 
2.  Four pages of Police Reports. 
3.  State Attorney's Office Letter, explaining "nolle prossedl'. 
4.  Letter of support. 
5.  Letter to Attorney w/Discharge documents attached. 
6.  AFOSI Report of  Investigation, 27 Aug  01. 
7.  NGB Form 22 -  Report of Separation and Record of Service. 
8.  Special Order A-259, 3 Mar 02, Approving Characterization and date of 

Discharge. 

9.  Two leave forms. 
10. Special Order T1-38, 23 Apr 02, Authorizing travel for separation physical. 
11. Two leave forms. 
12. Two copies of DD Form 214, 24 Apr 02 for Active Duty ANG. 
13. Two printouts of Decoration History. 
14. DD Form 214, 8 Jul 92, AF Active Duty. 
15. ANG Active Duty Order, AO-72, 4 Feb 99. 
16. Amendment to ANG Active Duty Order, order AO-72, 4 Feb 99. 
17. Two Copies of Involuntary Separation from the AGR Program. 
18. Two Requests for Records pursuant to Freedom of Information Act. 
19. Copy of Certified Mail Receipts. 
20. Fax Cover Sheet w/5 attachments. 
21. Computer Printout of  Finalization of Court Case. 
22. Seven Letters of  Support. 
23. Copies of three Preformance Reports. 
24. Unofficial Student Transcript. 

D E P A R T M E N T   OF T H E   A I R   F O R C E  

D e t a c h m e n t   1, 1 2 5 T H   F I G H T E R   WING  ( A C C )  

2 9 0 5 0   C O R A L  S E A   B L V D ,   B O X   4 
HOMESTEAD ARS.  FLORIDA  33039-1299 

FROM: Det  1,  125FWlCC 

SUBJECT:  Notification of Discharge Recommendation 

I .   I am recommending your discharge from the Air National Guard of the United States 
and as a Reserve ofthe Air Force for:  Misconduct.  The authority  for this action is AFJ 
36-3209, paragraph 3.21.3.1.  Copies of all supporting d o c ~ ~ m e n t c  are attached. 

2. My reasons for this action are:  During various times in 2000 and 2001, to include 
February 20,2001,  you indecently exposed yourself to toll  booth  operators at the Florida 
Turnpike. 

3.  This action may result in your receiving an Honorable, General, or Under Other Than 
Honorable Condition discharge.  I am recommending your service be characterized 'as 
Under Other Than Honorable Conditions. 

4.  If you have received advanced educational assistance moneys or special pay or 
bonuses,  you may be required to repay the U.S. for these moneys under the authority of 
Title  10 U.S.C.,  Section 2005. 

5.  You have the right to: 

a.  Consu 
may contact Cpt. 
to make an appointment.  You may consult civilian counsel at your own expense, or 
request military counsel of your choice if reasonably available. 

Military legal counsel is avaiIab1e to assist you.  You 
t  the  125th Fighter Wing Legal Office, (904) 74 1-704 1, 

b.  Submit statements at  any time prior to the decision of the Separation Authority 

to be considered in the disposition of this case.  A  request for or waiver of the board 
hearing does not affect  your right to submit such statements or documents at any time. 

c.  Waive the above rights, as well as your rjght  to an administrative discharge 

board hearing, after having the opportunity to consult with counsel. 

6.  A  copy of AFI 36-3209 is available for your use.  You may obtain a copy of this 
instruction from the  125 FW Information Management  Office, the Mi!itary  Personnel 
Flight (MPF), or the Base Legal Office. 

7.  You must execute and return, within 24 hours o f  your receipt  of this letter,  the 
attached Acknowledgement  of Receipt of this letter and attachments. 

8.  You must also execute and return, within  15 days of your receipt of this letter, the 
attached Election of Rights electing one of the following options: 

Request for a board hearing 
Waiver of a board  hearing. 

9.  If you request an administrative  discharge board hearing, you must also indicate on 
the Election of Rights the following: 

-  Whether you want representation by the military legal counsel made available 

Whether you want to make a personal appearance 

to you. 
Whether you ask to be represented by military counsel of your choice.  If so, 
identify such counsel by name, grade, organization  and phone number. 
Whether you will be represented by civilian co~lnsel. Tf  so, identify such 
counsel by name and address. 
Names, addresses and telephone numbers, if known, o f  any witnesses that  you 
want to appear before the board, giving a summary of their expected 
testimony on the issue o f  separation or characterization, and an explanation 
why written or recorded testimony of the witnesses could not be presented to 
the board hearing for a fair determination of the case. 
A statement that failure t o  appear at a scheduled administrative discharge 
board hearing, after you have indicated the intention to make a personal 
appearance at such hearing, will result in the case being heard by the 
administrative discharge board in your absence. 
A statement that if you o r  counsel need additional time to prepare  for or attend 
the board hearing, you or counsel may submit a written request  for delay 
stating the reasons and h o w  much time is needed.  The legal advisor for the 
board hearing approves or disapproves the requcsts. 

10.  Failure to return the Acknowledgement of Receipt  or the Election of Rights within 
15 days after receipt of this lener constitutes a waiver of all rights, with the rcsult  that  the 
case will  be processed  without an administrative board hearing on the information 
available. 

1 1.  You may request an extension of time to respond  if additional time is needed.  You 
(or your counsel) must submit a written request  stating the reasons and amount  of time 
needed.  A  request for extension o f  time must be received  by me not  later than  15 d:;ys  of 
your receipt  of this letter. 

3 Attachments: 
1.  Airman's Acknowledgement 
2.  Privacy Act Statement 
3.  Airman's  Election of Rights