I 

I 

I 
I  NAME OF SERVICE MEMBER (LAST, FIRST MIDDLE INITIAL) 

AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD 

1  GRADE 

 

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TYPE GEN 

1

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PERSONAL APPEARANCE 

I  x  I 

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RECORDREVIEW 

NAME dF COUNSEL AND OR ORGANIZATION 

ADDRESS AND OR ORGANIZATION OF COUNSEL 

MEMBER SITTING 

.----------------------------. 

ISSUES 

A94.05 

INDEX NUMBER 

A67.50 

I 

I 

I  ORDER API'OIN'TING  THE BOARD 

2  1  APPLICATION  FOR REVIEW OF DISCHARGE 

LETTER OF NOTIFICATION 
BRIEF OF PERSONNEL  FILE 
COUNSEL'S  RELEASE TO THE BOARD 
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF 
PERSONAL APPEARANCE 

TAPE RECORDFNG OF PERSONAL APPEARANCE HE 

HEARING DATE! 

27 Apr 2007 

CASE NUMBER 

FD-2006-00454 

Case heard in Washington, D.C. 

Advise applicant of the decision of the Board, the right to a personal appearance withlwithout counsel, and the right to submit an 
application to the AFBCMR 

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

. ,,. 

SAFIMRBR 
550 C STREET WEST, SUITE 40 
RANDOLPH AFB, TX 781 50-4742 

SECRETARY OFTHF AIR  FORCE PERSONNEL COllNClL 
AIR FORC t DISCHARGE REVIEH BOARD 
1535 COMLlAhD DR. EE HING. 3RD FLOOR 
ANDREWS AFB, M D  20162-1002 

AFHQ FORM 0-2077, JAN 00 

(EF-V2) 

Previous edition will be used 

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE 

CASE NUMBER 

FD-2006-00454 

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

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

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

FINDINGS:  Upgrade of discharge is 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.  Applicant contends discharge was inequitable because it was too harsh.  The records indicated the 
applicant received two convictions from a general court-martial: 1) for wrongfully and dishonorably 
engaging in unprofessional conduct by asking a female Airman to expose her breasts to him, and by 
commenting on her bra size, the size of her nipples, and her state of sexual arousal; and 2) by, on different 
occasions, knowingly fraternizing with the same female Airman by developing an unprofessional 
relationship of inappropriate familiarity with her while she was a subordinate under his command.  'The 
convening authority approved a sentence placing the applicant in confinement for two months confinement 
and giving him a reprimand.  The DRB opined that the applicant's  lengthy career in both the US Marine 
Corps (as an NCO) and in the US Air Force (as an officer), when combined with the repeated, serious, and 
escalating nature of his offenses against this Airman, gave the applicant sufficient time and warnings to 
cease his criminal behavior.  The Board concluded the applicant's 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.  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 and other accomplishments.  They found the seriousness of the willful misconduct 
offset any positive aspects of the applicant's duty performance.  The Board concluded the discharge was 
appropriate for the reasons which were the basis for this case. 

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 CAPT)  (HGH  CAPT) 

: . - . - . - . - . - . . . . . . . . - - - - - - - - - - - - - I  

1.  MATTER  UNDER REVIEW:  Appl rec'd  a GEN Disch fr USAF Fairchild AFB, WA on 24 
Apr 06 UP AFI 36-3206, para 3.6.4 (Misconduct -  Serious or recurring misconduct: 
punishable by military or civilian authorities).  Appeals for Honorable Discharge 
and Reason for Discharge. 

2.  BACKGROUND: 

a. DOB: 15 Feb 72.  Enlmt Age: 17 7/12.  Disch Age: 34 2/12. Educ: 

BACHELOR DEGREE.  AFQT: N/A.  A-N/A,  E-N/A,  G-N/A,  M-N/A. PAFSC: 13M3 - 
Airfield Operations Officer.  DAS: 15 Mar 02. 

b.  Prior Sv:  (1) USMC Res 12 Oct 89 -  14 Aug 90 (10 mos 2 days)(~nactive). 

AMS . 

Day, all AMS. 

(2) USMC 15 Aug 90 -  10 Aug 98, Svd: 7 Yrs 11 Mos 26 Das, all 

( 3 )  Enlisted USAF as SSgt 12 Aug  98 for 6 years. Svd: 3 Mos 1 

3.  SERVICE UNDER REVIEW: 

a.  Commissioned as 2Lt AFRes 13 Nov 9 8 .   Svd: 07 Yrs 05 Mo 12 Das, of which 

AMS  is 7 yrs 3 months 22 days  (excludes 1 month 20 days lost time). 

b.  Grade Status:  Capt -  13 Nov 02 
1Lt -  13 NOV 00 

c.  Time Lost:  26 Aug 04 -  14 Oct 04 (SO days) 

d.  Art 15's:  None. 

e.  Additional: None. 

f.  CM:  General Court Martial -  18 Oct 04. 

CHARGE T:  Article 128.  Plea:  Not Guilty.  Finding:  Not Guilty. 

CHARGE 11:  Article 133. 

Specification:  Did, at or near Fairchild AFB, WA, on divers 
..................... 
.-------------------- 

occasions from on or about 1 Apr 03 to on or about 31 May 03, wrongfully 
,-.-........-.-.- 
and dishonorably engage in unprofessional conduct with AlC: 
i,  to wit:  by asking her to expose her breasts to him, or words 
L.... 
to YIiAY--6Ffectt by commenting on her bra size, or words to that effect, by 
commenting on the size of her nipples, or words to that effect, by 
commenting on her state of arousal, or words to that effect, and touching 

her breasts with his hands.  Plea:  Guilty.  Finding:  Guilty. 

CHARGE 111:  Article 134. 

Specification:  Did, at or near Fairchild AFB, WA and at or near 

AL Udeid Air Base, Qatar, on divers occasions, from on .-------------------- 
or about 1 Apr 03 to 
on or about 29 Aug 03, knowingly fraternize with A1C : 
1 ---------------- >  an enlisted person, on terms of military equality, to wit: by 
, - - - - - - - - - - - - - - - - -  
wrongfully d e v e l o p i n g ~ ~ ~ ~ ~ f i ~ ~ ~ ? ~ ~ ~ s ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ g ~ i o n s h i p  
familiarity with AlC i .................................... 
command, in violation of the custom of the United States Air Force that 
officers shall not fraternize with enlisted persons on terms of military 
equality.  Plea:  Guilty.  Finding:  Guilty.  Sentence adjusted by military 
judge on 26 Aug 04:  Dismissal and two months confinement.  (18 AF/CC only 
approved the confinement.) 

of inappropriate 
'  a subordinate under his 

- - - - - - - - - - - - - - - - - - - - a  

! I  

g.  Record of SV: 06 Nov 9 9   -  05 Nov 00  Aviano AB  MS  (Annual) 

06 Nov 00 -  02 May 01  Aviano AB  MS  (CRO) 
03 May 01 -  15 Feb 02  Aviano AB  MS  (CRO) 
16 Feb 02  -  01 Feb 03  Fairchild AFB  MS  (CRO) 
02 Feb 03 -  0 9   Nov 03  Fairchild AFB  NMS  (CR0)REF 
10 Nov 03 -  02 Mar 05  Fairchild AFB  NMS  (AnnualIREF 

h.  Awards &  Decs:  NAVY AM W/2 DEVS, AFAM, AFCM, AFEM W/1 DEV, MCGCM W/1 
DEV, NDSM W/1 DEV, SEA SDR, AFSM W/1 DEV, SWASM W/1 DEV, AFTR, AFLSA W/2 DEVS, 
SMEMR, AFOSLTR, NATOM W/1 DEV, NAVY UC, AFOUA W/1 DEV, NAVY MM, GWOTSM, AFESR. 

i.  Stmt of Sv:  TMS:  (16) Yrs  ( 0 4 )   Mos  (20) Das 
TAMS: (15) Yrs  (06) MOS  (20) Das 

4.  BASIS ADVANCED  FOR REVIEW:  Appln  (DD Fm 293) dtd 24 Nov 06. 

(Change Discharge to Honorable and Reason for discharge.) 

Issue 1:  My case, which lead to my discharge, was not handed  (sic) in 

compliance with AIR FORCE INSTRUCTION 36-2909 dated 1 MAY 1999, PROFESSIONAL AND 
UNPROFESSIONAL RELATIONSHIPS.  Paragraph 8 specifically states 'Referral  of 
charges to a court-martial is not appropriate except in aggravated cases."  But, 
the evidence clearly shows that is (sic) was not an aggravated case. 

Issue 2:  Additional issues attached to brief. 

ATCH 
1.  Applicant's Issues. 
2.  DD Form 214. 

I - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  

L..-..-..-..-..-..--------------------. 

! Item 6, continuation 

AIR FORCE INSTRUCTION 36-2909 dated 1 MAY 1999, PROFESSIONAL AND 
UNPROFESSIONAL RELATIONSHIPS, governs the unprofessional relationship for which I 
was ultimately discharged from the Air Force. Paragraph 8 states, "If a relationship is prohibited 
by this instruction or is causing (or if good professional judgment and common sense indicate 
that a relationship may reasonably result in) a degradation of morale, good order, discipline or 
unit cohesion, a commander or supervisor should take corrective action. Action should normally 
be the least severe necessary to terminate the unprofessional aspects of the relationship. The full 
spectrum of administrative actions is available and should be considered. Administrative actions 
include, but are not limited to, counseling, reprimand, creation of an unfavorable information file 
(UIF), removal from position, reassignment, demotion, delay of or removal fkom a promotion 
list, adverse or referral comments in performance reports and administrative separation. One or 
more complementary actions can be taken. Experience has shown that counseling is often an 
effective fist step in curtailing unprofessional relationships. More serious cases may warrant 
administrative action or nonjudicial punishment. Referral of charges to a court-martial is not 
appropriate except in aggravated cases." 

When my case began, I was removed from my Flight Commander positio11, received 
adverseJrefena1 comments on my next 2 (two) Officer Performance Reports, and a UIF was 
created. This MI mentions the "least severe" actions necessary to terminate the unprofessional 
behavior, but least severe was never an option. The AFI also mentions that "experience has 
shown that counseling is often an effective fist step in curtailing unprofessional relationships." 
But, at no time was counseling advised for me. I did go on my own for my own sake and the 
sake of my marriage. But, nobody within my chain of command used this option to curtail this 
incident and attempt to salvage my 15 year career. 

Again, fiom the AFI, "More serious cases may warrant administrative action or nonjudicial 
punishment. Referral of charges to a court-martial is not appropriate except in aggravated cases." 
Even though there were no aggravating circumstances to warrant a court-martial and even after 
the Article 32 hearing where no aggravating circumstances were present, my case still continued 
on to a court-martial. At my court-martial, the panel of jurors consisted of 3 members, plus 1 
alternate. One of the 3 members was the incoming Deputy Wing Commander. The alternate was 
someone that had frequent interactions with the presiding judge.  In retrospect, the Deputy Wing 
Commander and the alternate should have been dismissed fiom the jury - but that would have 
left on 2 members, so the trial could have been postponed even longer than the 1 and one-half 
years that is had been dragging dong. My sentence included a Dismissal, but it was overturned 
by the 16 Air Force Commander. 

At that point I was allowed to remain in the service but not given any duties to try to rebuild the 
trust and coddence necessary to be a leader. After another year of waiting, it was decided to 
Administrative discharge me. In my opinion the Admin Discharge procedures was just a 
formality because my transcript fiom my court-martial was the only evidence used to discharge 
me. How am I able to argue a case when they are using things I plead guilty to as grounds for 
discharge. Also, as part of the Admin Discharge proceedings, my legal team was severely limited 
to what evidence could be presented, my urnworn statement had limits imposed on it preventing 

me from submitting relevant information to my case. All ------ my ---- legal team wanted to get across was 
a comparison of my case compared to that of MajGen: c-..-..-..-..-..-.~ 
forbidden to spoken in the hearing. Needless to say, I was separated with a General - Under 
Honorable Conditions discharge. 

:. But his name was even 

I desperately request the board upgrade my discharge to Honorable. My 15 years of service were 
not considered during this 3 year ordeal to separate me from the Air Force. The incident(s) that 
lead to my court-martial, should not have resulted in a court-martial. AFI 36-2909 clearly states 
that there are numerous ways to counteract the unprofessional behavior and those actions would 
have made a great impact on the remainder of my Air Force career. My mistake cost me my 
career. But,  I feel that legal wrangling has distorted my  15 years of service by discharging me 
with a General discharge. 

I would also like to ask the board, based on the information contained in AFI 36-2909 and the 
synopsis of my 3 year ordeal, if you believe I have been unfairly treated or incorrectly 
prosecuted in the legal system, wo~lld you recommend that my case be re-evaluated and the 
guidelines set forth in MI 36-2909 be properly administered. I want to be able to return to active 
duty and to continue to serve and protect my country. With you help, I may be able to do that. 

Thank you for your time and consideration to my request. 

MEMORANDUM FOR CUT: 

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L . -. -. . . . . . . . -. -. . . - - - - - - - - - - - - - - - - - - - - - - - :' 

: 92 oss 

FROM:  18 &/CV 

SUBJECT:  Noli6cafion of Show Cause Action Initiated Under AFI 3 6-3206, 'Chaptr% 3, 

Paragraph 3-5.4 

.  1.  I am initiating &on  against you under A R  36-3206, Chapttr 3, paragraph 3.6.4  (s&ious  or 
,  reaming misconduct pllnishablc by military or civilian anthorjties) that requires you to show . 

cause for retention on active duty. 

2.  I am -this 

action b d e :  

a From on or about 1 April 2003 to on or about 3 1 May 2003,  at m near Fai.rdhiId AFB WA, 

engaged in unprofessional conduct with 
on divers o c ~ a s i o n s , - y g ~ - ~ ~ ~ y - ~ ~ ~ h o n o r a b l y  
Aiman Fixst Class ............................ 
: to w i t   by asking her to expose hex breasts .to you,  or 
words to bt &ect, by bmmcbting oa her bra size, or words to that effect, by .commenti;n% on 
the size of her nipples, or words to that effecf ,by commenting on her state of arousal, or words to , 
that effecc and toucbmg her bxeasts with your hands, in violation, of Unifonn Code of MiLitary 
Judw Article 133, Conduct Unbecoming an Officer a d  GentXeman. 
-------------------.- 

b. Fmm on or abtnrt ,--- 1 A~ril2003 

to on or about 29 August 2003, you hm5ugly hatcmized 
ah enlisted pason, on terms of military equality* 
- by-~~>~@uJ..-&welppmg an unprofessional relationship of inapprupriate~fami.li&  with 

wifh Airman First Class : 
to 
AlC i 
j  a suborainate under your cninmand, ia violation of the custom of 
the rfza s G 6 - G  Pdrce'that officers shall not fraternize with mIisted pasom on brms of 
miIitary equality, in violation of U&rm  Code of MiIitiq Justice Article 134, Fhemkdoxj, 

L - - - - - - ; % - - - - - - - - - - - - - - - - - -  

' 

3.  Tbe lest favdraI.de character of dischsge that the Secreky of  the Air Force may approve in 
this case is under athk than honombla conditions. Attached is a copy of docUmentary evidence 
suppoyting this actiop 

4.  Sign and date ~e  attached indorsement acknowledg~~receipt of fhis notijication 
memorandum.  A wpy of the ngti5don memorandum will be provided to you I€ you decline 
to acknowltdge meiving this notification memorandum, the officer presenting it to you will 
indicate on it the date and time that you declined to acknow1edge receiving it zmd  it will be 
mcluded as a part of your case fde. 

. 

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, 

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36-3206, -pd&l+ 

5. F a m i h - k c ~ o ~ w i t h ' ~  
request a resignalion in Iim of fathex drd&m&ve 
*nv-as~~)Pihdin-7. 
:at 325 C M ~ ~ Q  Way, ste. 
1732, Los Angeles AFB, El S e p d o ,  CA 902454677, telephone nmbm 31 0-363-6776 'to 
. 
discuss the procedures irivolvcd and your rights and vptions.  If you. decLine cotmsel, contad the 
chief; Mititarg Personnel FIigtrt, Maj .-------------------- 
: 220 W, Bong Sy Fairchild AFB, WA, 
9901 1,  telephone number 247-540 1, for comrseling about your rights and options. 

CmMaj:--------------------- 
.-------------------- 
: 

the rights && Yon have.  LFym do nit 
actioq _______. 

a Board of hquiq POT) wiU 

" 

a 

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+ 

6. ~ ~ o u ~ e ~ t ~ p r s e n t ~ s t o a B O & t h e s t a n d a r d o f p m o f u ~ d b y t b t b o a r d t o m a k c  
evidence and argument to rebut 
findings is a prepohdemqce of thc evidenc~. Yon may 
the reasons set forth in this nofScation memorandum or any additional reason or h f k d o n  
developed during the BoI  proceedings.  You also may present oth& ? r e b e n t  evidence. 

7. Wltlia 10 calendar day$ after  you rcceive this notification memoranduiq, you must respond 
by indorsement tb me. IT I do not receive the indorsement within the dotted time, I will proceed 
with fiather action zsldcr AFI 36-3206.  Mude in your i n d o m a t :  

a Any stakxmnt you wish to submit on yoursbwn behalf and/or 

additi6na;l evidence that 
yon wish me to conside5  If you are unable to subinit your statements or d o c m a w  evidence 
within 10 cale~jdar day$ afta receiving 
t i m e  as allowed mdtx AFI.36-3206. Submit your request for additional. fime to my designee;.  . 
18 AFDA  If you do not subpit s t a t e m a  oi evidence, your failure will c
a waiver of 
your right to do so abd I will refer yow c*t  to the BOI. 

notification merriomdurn, you may request more 

~

o

~

 

, - - - - - - - - - - - - - - - - - -  

b. ~~statam'nt mst Maj : 

rights and options in this actm~ I€ you declined ~ounsel, so. state and indicate h t
------------ 
; .-.-...... 3 
.rights and options In fbh action 

I  chiet Milifmy Persormcl Fli&  counseled you and fhat you fully understand your 

icotinseled you and that you f d y  mdershd your 
 hkj - - - - - - - - 

b-.-.-.-........... 

---------. 

C.  A shtexnent 

assistance,  specid pay, or bonuses received if you have not wmplckd the pe.riod df active dutJi 
you agreed to m e :  

you d e n t a n d  the foLIowing regarding recoupmerit of educaiioaal 

(1)  ~ e c o ~ m e a k  
iFyou voImtady separate. 

of a p d o n  of cdrication assistance, special pay, or ban* monies 

r-ived 

(2)  Fkcoupmmt of a partion of cducaiim assistance received ifinpbluntary discharge ii 

*. 

.. 

fmmisco- 

(3)  Rtcoupmcnt of a portion of specid pay of  bonus monies received regardless of the 

basis for involuntary &charge. 

(4)  The reconpent in ail cases is an amo*  &at bears fhe saxhe ratio to the total amount 

or cost provided to you as the umemed portion of active duty bears to the tad period of active 
asrty &at yon w e d  to serve, 

' 

(5) If son dispd tlbt you an hhbted f o r e d i i o d  askistan~+ fie baardof 

-  - 
.  or if you do not choose a board of inphy, an d & y  appointed by A W C C ,  will nyke 
h
4.32 and 4.33, regarding special rules for recoupment. 

 and r e c o ~ ~ o m  
m & g  

the validity of your ikdebbdmss.  See Al?I  3 6-3206, 

. . 

s

a

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, 

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. 

d A -& 

notaging me whether yon inttnd to tender yam red@ona.  E yon h w  

tendered your resignation, m h  a copy of the resignation. 

e.  A statement W the area defanse counsel or the chief, IZIi~jlllitary Personnel Fligb& 
eqlained separiciion pay to you and that you understand thk eligiity criteria to receive 
separation. pay. 

f. Any other pertinent Fnformation. In response to this notification mmorandmn, you may, 
w3hh 10 calesdar days, tender your resignation. under MI 36-3207, chapter 2, section B, with 
. 
the undsstanding that, if the Secretary of the Air Force accepts your resignatiog you may 
receive an under ofher than honorable conditions discharge ualeis the Secretary of the Air Force 
determines that you should receive a dischargd under honorable conditions (general) or an 
honorable discharge.  If the Secretary of the Air Force accepts, yourresignation, your discbarge 
date will be as  soon as possible but no later than 10 calendar days after fhe date that the Military 

8.  I have been bformcd by your commander that action under AFI 31-501 has been &en 
because you curremtly have, or have had in the p a  access to Smsitive Comparhmted 
Information (SCI),  Single I n t e e d  Operational Plan - Extrmely Sensitive M o d o n  (SIOP- 
ESI) or other special access programs. 

9;. Y o u  may request excess leave if the Air Force does not require your firthcz participation in. 
processing your case. 

' 

.

 

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Major Gperal, USA$ 

. 

Attachmenis: 
1. Recommendafion Memo w/ indorsemerit 
2.  G ~ I &   Court-- 
3.  AJ? Fom 1359,26 Aug 04 
4.  M Form 1 168, Cook S t a k t u q  20 Sep 03 
5. AFF-475,: 
6. AFI 36-3206 
7. AFI 36-3207 

Dm99 

Order No. I, 1 8 Oct 04