AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

N A M E  OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) 

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RECORD REVIEW 

ADDRESS AND OR ORGANI7ATION  Or COUNSEL 

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DENY 

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

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL 
AIR FORCE DISCHARGE REVIEW BOARD 
1535 COMMAND DR, EE WING, 3RD FI,OOR 
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-2005-00433 

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

The  applicant  appeared  and  testified  before  the  Discharge  Review  Board  (DRB),  without  counsel,  at 
Andrews AFB on 21 Mar 2006. 

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 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. 

ISSUES:  The  applicant's  issues  are  listed  in  the  attached brief.  The  applicant requests  upgrade  of his 
discharge contending that his administrative separation was improper because it was wrongful termination of 
employment that  violated  his  constitutional right  against repeat  prosecution  and  punishment  for the  same 
offense, i.e., double jeopardy.  He further asserts he was denied due process to "confront  his accuser"  when 
the  Numbered  Air  Force  coinmandcr,  the  Show  Cause  Authority, did  not  meet  with  him  in  person  when 
processing his administrative discharge. 

The applicant was discharged with an under honorable conditions (general) discharge for misconduct after 3 
years, 8 months and 5 days on active duty.  A graduate of the Air Force Academy with a degree in 
aeronautical engineering, he requested and was granted an Exception To Policy by the Chief of Staff of the 
Air Force for pilot training due to disqualifying excessive refractive error.  While in undergraduate pilot 
training, he requested and was granted training as a First Assignment Instructor Pilot (FAIP).  He also 
requested and was panted assignment to Vance AFB as a T- 1 FAIP.  While attending instructor pilot 
training he received a Letter of Reprimand for two incidents of leaving his place of duty and the local area 
without authority and failure to obey a lawful ordcr.  Hc was nevertheless allowed to complete instructor 
pilot training and arrived at his requested assignment at Vance AFB.  Within four weeks of his arrival for 
Instructor Pilot Duty, the applicant turned in his wings stating he did not want to fly anymore and wanted to 
be assigned in acquisitions or personnel, or as an engineer (aeronautical engineering degree).  He was 
removed from the flying schedule and detailed to the Security Forces Squadron as a Security Forces 
Augmentee, approximately one month after the 9-1 1 terrorist attacks.  His conduct while detailed to the 
Security Forces Squadron (including reporting late, failing to show for duty, and poor duty performance) 
prompted the Security Forces Squadron Commander to return the applicant to his permanent squadron and 
formed the predominant basis for non-judicial punishment by Article 15 for two incidents of failure to go, 
and one incident of being absent from duty without authority. 

The applicant's  initial request for Voluntary Disqualification of Aviation Service was denied and he was 
notified of Flight Evaluation Board proceedings.  In response he submitted a request for Voluntary 
Disqualification In Lieu of Flying Evaluation Board (VILO) that was subsequently approved in August 
2002.  Simultaneously with his final disqualification for flying based on VILO, he was notified of show 
cause for administrative discharge for his previous misconduct.  The applicant requested retention in the Air 
Force and assignment in an engineering career field stating his misconduct was caused by the stress of 
marital discord which had been resolved.  The applicant's  wing commander recommended separation 
stating, "While it is true that Lt 
suggest that his future  conduct andjudgment would be diffirent &faced with similar stressors.  He has 

possesses  skills needed by the Air Force, there is little evidence to 

A 

demonstrated a lack ofreliability, repeatedly poor judgment,  and a conscious willingness to repeatedly 
disregard rules andprocedures when it meets his needs.  Such conduct demonstrates a lack of  character." 
The DRB noted the applicant's  excellent duty performance in a non-flying position following his Article 15 
as well as his testimony of post service employment as an aeronautical engineer but concurred with the Wing 
Commander's  assessment.  The Board also noted that the applicant, an avid runner who was on the Academy 
track team, is also involved in numerous running related community charitable activities.  The Board also 
acknowledged the applicant's  desire to join the Missouri ANG and apparent offer of employment, 
conditioned upon upgrade of his characterization, but this is not a matter of inequity or impropriety 
substantiating a basis for upgrade. 

The applicant's  assertion that his discharge was repeat punishment for offenses for which he was previously 
punished is without merit.  The applicant's main contention is that the Letter of Reprimand and the Article 
15 non-judicial  punishment constitute being placed in Jeopardy in accordance with Amendment V of the 
United States Constitution and his subsequent Administrative Discharge for the same acts contained in the 
Reprimand and Article 15 constitute prohibited Double Jeopardy.  His theory is clearly erroneous as the 
Fifth Amendment involves attachment of criminal jeopardy.  A Letter of Reprimand and an Article 15 do not 
constitute criminal jeopardy  nor does the Administrative Discharge.  Since no jeopardy ever attached, there 
can be no double jeopardy  and his position is without merit.  The applicant's  separation from service was the 
administrative consequence, not punishment, of his previous misconduct.  The applicant's  assertion that he 
was also denied his right to "confront his accuser" is also without merit since his separation was not a 
criminal court proceeding but rather an administrative procedure that provides no privilege to demand a 
personal appeal with a Numbered Air Force commander.  The Board notes that voluntary disqualification 
from flying may alone be cause for adniinistrative separation and that cross training or reassignment to 
another career field under these circumstances is not assured.  Further, the applicant's pattern of misconduct 
made such consideration inconsistent with the needs of the Air Force. 

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 

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DEPARTMENT OF THE AIR FORCE 

AIR FORCE DISCHARGE REVIEW BOARD 

ANDREWS AFB, MD 

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(Former 1LT) (HGH 1LT) 

1.  MATTER UNDER REVIEW:  Appl recfd a GEN Disch f r  USAF Vance AFB, OK on 6 Feb 
03 UP AFI 36-3206, para 5.3.4 (Misconduct -  Serious and Recurring Misconduct 
Punishable by Military or Civilian Authorities).  Appeals for Honorable 
Discharge, and to Change the Reason and Authority for Discharge. 

2.  BACKGROUND: 

a. DOB: 8 Nov 75.  Enlmt Age: 19 7/12.  Disch Age: 27 2/12. Educ: 

Baccalaureat Degree. AFQT: N/A.  PAFSC: TZlK3A -  Instructor Pilot. DAS: 8 Nov 99 

b.  Prior Sv: USAF Academy 28 Jun 95 -  1 Jun 99 (3 yrs 11 months 3 

days) (Inactive) . 

3 .   SERVICE UNDER  REVIEW: 

a.  Appointed to 2Lt &  Ordered to EEU,  2 Jun 99. Svd: 03 Yrs 08 Mo 05 Das, 

a11 A M S .  

b.  Grade Status:  1Lt -  2 Jun 01 

c.  Time Lost:  None. 
d.  Art  15's:  (1) 22 Feb 02, Vance AFB, OK -  Article 86.  You did, on or 
about 15 Oct 01, without authority, fail to go at the 
time prescribed 0800 hours, to your appointed place of 
duty, to wit: 71st Security Forces Squadron, Building 
527.  You did, on or about 0500 hours, 14 Nov 01, 
without authority, absent yourself from your unit, to 
wit: 71st Security Forces Squadron, Building 527, and 
did remain so absent until on or about 1520 hours, 14 
Nov 01.  You did, on or about 27 Nov 01, without 
authority, fail to go at the time prescribed, 0730 
hours, to your appointed place of duty, to wit: 32nd 
Flying Training Squadron, Building 541.  Forfeiture of 
$1,375.00 pay per month for 2 months, and a reprimand. 
(Appeal/Granted) (No mitigation) 

e. .  Additional: LOR, 10 MAY 01 -  Leaving place of duty without authority 

and failure to obey a lawful order. 

f.  CM:  None. 

g.  Record of SV: 16 Dec 00 -  24 Dec 01  Vance AFB  DNMS  (Annua1)REF 

h.  Awards &  Decs:  NDSM, AFTR, AFLSAR, SAEMR. 

i.  Stmt of Sv:  TMS:  (07) Yrs  (07) Mos  (09) Das 
TAMS:  (03) Yrs  (08) Mos  (05) Das 

4 .   BASIS ADVANCED  FOR REVIEW:  Appln  (DD Fm 293) dtd 24 Oct  05. 

(Change Discharge  to Honorable and Change the Reason and Authority for 

Discharge) 

ISSUES ATTACHED TO BRIEF. 

ATCH 
1. Applicant's Issues. 
2. Copy of Show Cause Notification Lettes,  26 Aug  02. 
3. Letter of Reprimand, 10 May  01. 
4. Article  15,  22 Feb 02. 
5. HQ USAF/DFBL Letter, 25 Oct  05. 

TO: SAF/MIBR 

550-C Street West, Suite 40 
Randolph AFB, TX 78 1 50-4742 

FROM:! 

To Whom It May Concern, 

I am requesting an appearance before the Air Force Discharge Review Board. I was involuntarily 
discharged on 7 February 2003 as a result of a Show Cause Action. The separation was General 
Discharge under Honorable Conditions as a result of misconduct. However, the Show Cause 
against me was a violation of my constitutional right against double jeopardy. I had previously 
been prosecuted for the events that were the basis of the Show Cause. I will explain below how 
this Show Cause led to a Wrongful Termination. 

To begin with, I would like to defme double jeopardy and wrongful termination. Double 
jeopardy is the act of being tried twice for the same offense. It is illegal and banned by the 5m 
Amendment of the U.S.  Constitution. It prevents second prosecution for the same offense after 
acquittal, a second prosecution for the same offense after conviction, and multiple punishments 
for the same offense. 

Wrongful termination is the firing of an employee for illegal reasons in the eyes of the law. This 
means that the employer, in this case the U.S. Air Force, violates a Federal law, regulation, or 
constitutional provision. 

Enclosure A is the Show Cause Notification Letter. Paragraph 2a charges misconduct on 17-20 
Apr 200 1 and 27-29 April 2001. At the end of that paragraph it states, "For these offenses you 
received a letter of reprimand." At this point, according to our U.S.  Constitution, I can not be 
prosecuted again for this offense. The Letter of Reprimand is enclosure B. Although I still 
believe myself to be innocent, that is not a subject of this forum. 

Paragraph 2b charges misconduct that occurred on 15 October 200 1,14 November 200 1, and 27 
November 2001. At the end of this paragraph it states, "For these offenses you received Article 
15 punishment on 22 Feb 2002."  The Article 15 documentation is enclosure C. Although I still 
believe myself to be innocent that also is not a subject of this forum. 

As can be seen, I had already been prosecuted once for each of the offenses listed as the reason I 
was being prosecuted under the Show Cause action. This is double jeopardy. As stated above, 
this meets the criteria of "a  second prosecution for the same offense after conviction, and 
multiple punishments for the same offense." This illegal act led to my being dismissed from the 
Air Force. This is wrongful termination because I was fired in violation of my 5fh Amendment 
rights, a "constitutional provision," 

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Enclosure D is a letter from my former Squadron Commander colonel; - - - -  - - -  - -  - - -  - - -  - 
that after the Article 15 action, there was no fkther misconduct and I was a valuable asset to the 
squadron. With no misconduct, I could not legally be prosecuted under this Show Cause. 

j.  It states 

I have chosen to pursue correction of this issue through the Air Force Discharge Review Board 
instead of through legal action. I believe resolving these matters in this forum is in the best 
interest for both parties. As a result of the illegal actions taken against me, I ask the Discharge 
Review Board for the following four actions: 

1.  Removal of misconduct as the reason for discharge. 
2,  Upgrade of my discharge to an Honorable Discharge because the General Discharge was 

given as a result of the misconduct label. 

3.  Payment of the separation pay I was wrongfully denied because the separation was 

labeled misconduct. 

4.  Payment of all lost wages from February 2003 to the present because I would still be 

serving in the Air Force if not for this illegal Show Cause action. 

I look forward to discussing this with the Air Force Discharge Review Board. Thank you for 
your time. 

Respectfully, 

I _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - - - - - - - - - - - - - - - -  

Wed  D e e   14 2 0 0 5   0 9 : 4 8   I K O N - . .  .  FD2005-00433 

DEPARTMENT OF THE AIR FORCE 
H L A W U A ~ ~ ~ ~ I U  wmmmn AIR  m w  umcb 

MEMORANDUM FOR I L'l' vn NLc.= -nnFFRRoK 

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FROM:  I 9 AFICC 

73 Main Circle Suitc 1 
Randolph MI3 TX 18 1 50-4549 

SUBJECT:  Notification of Show Cau6e Action Initietcd Unda Chapter 3, AF136-3204 

1.  1 m initiating ttction undw AFI 36.3206, Admlnishwtive D&charp P ~ w s d ~ J o r  
Comnrisssslond WLWI:~, 
punishable by military autlioritia~, that requirts you to show causb for retention on active duty. 

Chap&  3, Misconduct, p m ~ a p h  3.6.4, r&ng  misconduct 

2,  1 am taking this action bcmsc: 

e,  On 17 to 20 Apr 01 and on 27 to 29 Apr 01, you toft your place of duty and the local m a  

without authority, without signing out of the unit nnd without receiving a pmdaparture safety 
briefing.  On 27 Apr 01, you also filled to obcy a lawful order of your flighl commander to be in 
the squadron am  from 0800 to 1600 unles given explicit nuthoriwtion to depart.  For these 
offenses you recsived a lettar of reprimand on 10 May 01 (At&  1).  In your response, you stated 
thtit nothing like this would happen again. 

b. Aflw thc wwts of I I  Scp 01, you were assigned duties in suppod of tho 71" Secwity 

Forces Squadron based on a hdghceped force protection condition. On I5 Oct 01, you failed to 
go, withont authority, to your appointed place of duty, the 71 * Security Forces Sqdron 
Budding,  At 05W h o w  on 14 Nov 02, you ware abscnt, without authority, &om the 71" 
Soaui  Forces Building.  Aa a mlt of this misconduct, you were reassigned from duty with 
tho 71  Scovrity Forces Squedron back to B1C 3ad  Hybz Traidn~ Squsdmn.  O n  27 Nov 01, 
ynu failed to go to ydur appointed placc of duty, the 32  Flying Training Squadron. For these 
offcases you mtivcd Article 15 punhbent on 22 Pcb 02 (Atch 2), 

,EY 

c.  The l a s t  favormblc chatactwintion of discharge that the Secretacy of Ihe Air Force may 
approve in this case is under other than honomblc conditions (UOTHC). Attached arc copies of 
dscumdwy evidence to supprt thi~ action. 

3.  Sign and data the attached indomernent acknowled@ng receipt of this notification 
memorandum.  A copy of the notification memorandum will be provided to you.  If you decline 
to acknowledge receiving this notificatian memorandum, the officer presenting his to you will 
indicato on it, the date and time that you declined to acknowldge d y t .  This notification and 
a~knowlsdgement memorandums will hc part of your cssc filc. 

4.  Fmiliarizc yourself with AFT 36.3206, particularly the  right^ that you have.  If you do not 
rsqucst a resignation in lieu of further administrative action, an Air Force Personnel Board 

W e d  Dac  14 2 0 0 5   0 9 : 4 8   I K O N  

FD2005-00433 

(ATPB) or Ijoard a1 Inquiry (B01) will convene 
arr  provided in Chapter 6 or Chapter 7.  Contact 
the Arut Defense Counfiel (ATIC)  Captain:- - - -  - - -  - - - - -  - - -  -; a1 McCmell AH3 U, DSN: 743- 
4375 to di~cuss~I~c_pr_&~1~~_~nvo1vcd 
oonlrct Ct~pt~in: . - - - - - - - - - - - - - - -k '  Chid, MPl!  Vsilce APB OK, DSN:  448-7546 far cou~iseling 
ahout your rights and nplinns. 

-----------------. 
and your  right^ and options.  If p u  decline caunscl, 

5.  1C  you am cnrirlcrl to rr  1301 at10 you elect to prseni mntlcr~ 10 the HOl, \he standard of proof 
u$cd to makc findings is a propondorancc of cvldcncc.  You [nay prcscnl avidcncc ttnd  argument 
to rtbut the rensuns set  farth in Ihir; notification memor1~1dum or my addlrional maron 01' 
information dcvdopcd during the I301 pmedingo.  You alw mny preaant otlrer pertinent 
evidence. 

6.  Within  10 calendar days aftcr you reccivc this notification me~uwandum, indorse it dimtly lo 
me. 1l I do not rcccivc the jndorscmcnl within thc allotled rime, I will proceed with further 
action under A H  36-3206. lnclude in your indorsement: 

a.  Any statement you wish to aubmit on  your bcl~alf and/or  any addition J cvidence you wish 

tne to coosidw.  Alr~ch any stntemts or documentary evidclt#.  ff p u  arc unal)le to submit 
your statemalts or doeumcntary cvidcrlce within 10 Falcndnr days ufter nxeipt of this 
nolificalion memorandum, you may q u e s t  mort time as allowcd undw' AFI 36-3206. Submit 
your rcqumt for additional time to me addressed lo 19 APICC, 73 Main Circle, Suite 1, 
R~ndolph MJ3  TX 78150-4549, If you 30 not submit starcnlents 01,  cvidence, your failure will 
constitute a waiver of your right to do so ~ n d  1 will refer your case to #n APPB or BOI. 

b. A stnloment that Captain: 

'  AFLSAIADC. cour~seled you and that yo11 

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fully understand your rights ambi$i6i~~ihiiiihian. If  you declined to consult with counsol. 
SO smte and indicate that Captain[-:::::::::::::?+ 
Chief. Military Psrfional Flight, counseled you 
and lhal you fully understand your rights ~ n d  opdons in his action. 

c.  A staernenr &ha( you fully undwslnod the following regarding the recoupnlent of 

education assistance, special pay andlor any sptxial pay or bonuses received if you have not 
coinpletsd [be period of active duty you a$reed to scrvc: 

(1) Recoupmenl of a partion of education assistance andlor special pay or ballus 

lnonics received if you volut)tarily ceparak. 

(2) Recauprnunl oi a portion of cducation usistance received if involuntarily discharged 

for miticonduct. 

(3) Recouprnent of a portion of special pay or bonus monies received regardless of the 

basis for involuntary discharge, 

(4) Recoupment in all crrscs Is an arnounl diet bears the s u m  ralio lo Lhe total amount or 

cost provided lo you as the unrcrvcd ponion of activc duty bcm ta thc total period of activc duty 
that you agreed 10  scrvc,  If you di~pule lhal you lrra indebted for aducntiwal nssistmcc. thc 
b o d  OC inquiry, or, if  you do not choose or arc not tntitled to a board of inquiry, an authority 

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FD2005-00433 

appointed by tither the Show Cause Authority or ATWCC, will make findinga and 
reco~mnmdarions wnwrning the validity of your indebtedness,  See AP136-3206, paragraphs 
4.32 a d  4 3 3  regding spocial rules for rcooup~nent. 

d.  A statement notif)ing nlc wvhetbar you intend to apply far r e t h e o l t  or tender your 

resigr,etion. If ynu have applid for retiremarc ot l e n d 4  your mignation, attach a copy sf tba 
~wi@ 

fition. 

a.  A statement tha~ the hen Dafanoe Counsel or Chief, Mililary Personnel Plight, cxplaincd 

sepuation pay to you and diat you undcsptand Cht  eligibility criteria Lo  rcccivc separation pay, 

f  Any other pertinent information. 

7.  In mponse to this notification memorandum, you may, within 10 calmdnr days, tailer your 
mignation undvr AFI 36-3207, Chapter 2, Seclion B, with the understanding that, if (he 
Sairctary OF the Air Force accept$ your xosignation, you tnay m i v e  a discharge under other 
than honorable wndilions (LJOlbHC) wrless tha Sammy ofthe Air Force detemintss that you 
should w i v e  e discharge wldw honorable conditMtis (g~11u81) or an honorablc disclrarge. If 
th~t Secretary of the Air Force aooopts your resignation, your discharge will be as mrr  as 
pc-ssiblc, but no latcs that  10 calcndar days aAw tho date that tho MPF rwivcs s~arution 
instructions. 

8.  Action is not requircd under API 31 -501, P~sorrlfzl SecuriqPmgra~ Ma~v@mm:, 
9. YOIJ may roquest exctss le8i1e, if the Air Forcc doa not require your fi~rthcr participation in 
processing yotrr case. 
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------.------------------------------------ 

Majol Gcncral, USAF 
Commmder 

Atlechrnol~ta: 
1.  Letta of Reprimand,  I0 May 01 (3 pagas) 
2.  Article 15,22 Feh 02,wlsupporbg documenlation (2 1 pngcs) 
3.  Rcfwral OPR (16 Dec 00 tn 24 Dec 01) 
4.  Recordu Review LUP, 3 1 Jul02 (4  pges) 
5. Acknmvledgmcnt of SCA Notification 
6, Response to SCA