Free Joint Status Report - District Court of Federal Claims - federal

Case 1:05-cv-00410-MMS

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS MARIO R. LOPEZ-VELAZQUEZ, Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 05-410C (Chief Judge Damich)

JOINT STATUS REPORT Pursuant to this Court's order dated July 13, 2007, the parties respectfully submit the following joint status report regarding the status of proceedings before the Air Force Board for Correction of Military Records ("AFBCMR" or "board"). On July 11, 2007, the board considered and recommended denial of Mr. Lopez-Velazquez's application along with his request for a formal hearing. The board issued its decision on August 9, 2007. See Attach. 1. In light of the board's recent decision, we respectfully request that the parties be permitted to file a joint status report and proposed schedule on or before September 13 in which the parties will propose a schedule for further proceedings in this matter, if necessary.

Respectfully submitted, PETER D. KEISLER. Assistant Attorney General JEANNE E. DAVIDSON Director

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s/ Gary Myers GARY MYERS 78 Clark Mill Road Weare, NH 03281 Attorney for Plaintiff

s/ Todd M. Hughes TODD M. HUGHES Deputy Director s/ Michael J. Dierberg MICHAEL J. DIERBERG Trial Attorney Commercial Litigation Branch Department of Justice 1100 L Street, NW Attn: Class. Unit 8th Floor Washington, D.C. 20530 Tel: (202) 353-0536 Fax: (202) 305-7643 Attorneys for Defendant

August 20, 2007

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ATTACHMENT

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DEPARTMENT OF THE AIR FORCE
WASHINGTON, DC

Office Of The Assistant Secretary

AUG

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AFBCMR 1535 Command Drive EE Wing, 3rd Floor Andrews AFB MD 20762-7002 Mr. Mario R. Lopez-Velazquez C/OMr. Gary R. Myers 78 Clark Mill Road Weare, NH 0328 1 Dear Mr. Lopez-Velazquez Reference your application submitted under the provisions of AFI 36-2603 (Section 1552,lO USC), AFBCMR Docket Number BC-2003-01216. After careful consideration of your application and military records, the Board determined that the evidence you presented did not demonstrate the existence of material error or injustice. Accordingly, the Board denied your application. You have the right to submit newly discovered relevant evidence for consideration by the Board. In the absence of such additional evidence, a further review of your application is not possible. BY DIRECTION OF THE PANEL CHAIR

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Chief Examiner Air Force Board for Correction of Military Records Attachment: Record of Board Proceedings cc: Mr. Gary R. Myers

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ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: MARIO R. LOPEZ-VELAZQUEZ DOCKET NUMBER: BC-2003-01216-2 INDEX CODE: 115.02 COUNSEL: GARY R. MYERS HEARING DESIRED: YES

RESUME OF CASE: On 16 October 1997, the Board considered and denied applicant's requests to be reinstated to active duty in the grade of technical sergeant; awarded all back pay and allowances due and credited with time in grade for pay promotion; and, his records be expunged of all derogatory information. For an accounting of the facts and circumstances surrounding the rationale for the earlier decision by the Board, see the Record of Proceedings at Exhibit H (with Exhibits A-G). On 29 March 2005, the applicant filed suit in the United States District Court of Federal Claims. On 1 November 2005, the Court remanded the case to the Board for reconsideration with instructions to review the Air Force records of investigation of applicant's claim of ineffective counsel (Exhibit K) and the Discharge Review Board's alleged findings that "an error and injustice" had occurred with regard to the applicant (Exhibit L). It also directed the Board to explain its rationale if it decided not to grant a hearing. A complete copy of the Court's Memorandum-Opinion and Order is attached at Exhibit I.

AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant's request. JAJM states that at the time of the court-martial and Chapter 4 discharge request, the applicant was an 18 % year noncommissioned officer and member of the security forces squadron. A review of the contents of the file establishes the applicant signed a request for a Chapter 4 discharge in lieu of courtmartial on 7 December 2000. In that memorandum, he acknowledges he consulted counsel, that if his request was approved he could be discharged under other than honorable conditions and he was aware of the adverse nature of such a discharge and the possible consequences. The applicant's Area Defense Counsel (ADC) submitted a memorandum, dated 7 December 2000, to which he attached 20 character statements and another 102 assorted certificates, letters of appreciation, Enlisted Performance

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Reports, decorations, etc. There were no irregularities in the Chapter 4 submission. There is also a 22 December 2000 memo for record signed by the ADC, which summarizes the steps he took to ensure the Chapter 4 request was the way the applicant wanted to proceed and reflected the concern the applicant had about having to possibly register as a sexual offender if convicted of some of the charges. Additionally, there is a 27 July 2001 statement from the defense paralegal assigned to work with the ADC. In her memorandum, she relates the ADC interviewed all four of the alleged victims and between the two of them another 28 potential witnesses were interviewed. On 10 April 2001, an Investigating Officer (10) was appointed by the Air Force Legal Services Agency (AFLSA) commander to examine the allegation of ineffective assistance of military counsel. The I0 filed his report in August of 2001 and determined by a preponderance of evidence that the allegations were unsubstantiated. AFLSA/JAJD (Trial Defense Division) reviewed the 10's report of investigation, found it was legally sufficient, and that it supported a recommendation to close the case. Ultimately the 10's conclusions were adopted by the Air Force in finding no basis existed for a claim of ineffective assistance of counsel. It is JAJMfs opinion the preponderance of the evidence supports the conclusion that the applicant's claim of ineffective assistance of military counsel is without merit. The complete JAJM evaluation is at Exhibit M.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: By fax dated 19 June 2006, the applicantfs civilian counsel responded stating they have never seen the AFLSA investigation in which the advisory opinion relies exclusively upon. The investigation examined whether the applicant's ADC had violated any ethical standards. They never have suggested he did. The AFLSA investigation appears to be in direct conflict with the DRB proceedings. Declaring that a "Board sponsored evidentiary hearing into the matter is unwarranted" is the height of arrogance. A Board sponsored evidentiary hearing into the matter is the only way to get the truth. Relief should be granted to the applicant or an evidentiary hearing should be held. The Counsel's submission is at Exhibit 0.

APPLICANT'S REVIEW OF ADDITIONAL DOCUMENTATION: In response to providing the applicantfs counsel with a redacted copy of the AFLSA Commander Directed Report of Investigation and subsequent attachments (Exhibits P and R), the counsel replied

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the affidavits from the ADC and his legal assistant are self serving and are untested by cross examination. Only a hearing can properly develop this case. What is clear is that the ADC gave palpably bad advice on the question of whether the applicant could enter police work saddled with a UOTHC discharge. What is equally clear is that the legal assistant was not privy to conversations between the applicant and the ADC. Her affidavit tells of what she thinks or believes but not what she knows. A hearing is the only proper vehicle to resolve this matter. The Counsel's submissions are at Exhibits Q and S

THE BOARD CONCLUDES THAT:

1. The applicant has not been the victim of an error injustice warranting the level of relief requested of this Board. Pursuant to the remand order of the United States Court of Federal Claims, we have completed a complete and exhaustive review of the complete evidence of record in this case. Of significance, we note that the evidence of record in this review included the Air Force investigation of the applicant's claim of ineffective assistance of counsel, which was not previously considered, and transcribed testimony from the AFDRB Formal Hearing with us placing emphasis on the fact the AFDRB has previously concluded the applicant was the victim of an error or injustice for the same events under our review.
2. Primary to the applicant's argument for relief is the claim of ineffective assistance of counsel. Notwithstanding counsel's assertion that the Air Force investigation into this matter only looked at whether the Area Defense Counsel committed any ethical violations, we believe that the investigation establishes by a preponderance of the evidence the applicant was not the victim of ineffective assistance of counsel. As such, we are not persuaded the applicant was not properly advised and put on notice of the consequences of his voluntary request for administrative separation in lieu of court-martial and that he could receive an under other than honorable conditions discharge. We note in the advisory prepared by AFLOA/JAJM that, in addition to relying on advice from his Area Defense Counsel, the applicant also sought a second opinion from a civilian attorney prior to submitting his request for an administrative separation rather than courtmartial. Given the applicant's choices, administrative discharge or court-martial, and if convicted by court martial, possible confinement and labeling as a sex offender, we are not persuaded the Area Defense Counsel could have provided any guidance that raises the likelihood the applicant would have or should have made a different choice. Consequently, we do not believe the applicant had ineffective assistance of counsel.

3. It appears there are questions regarding why the Air Force Discharge Review Board in their consideration of this case determined the applicant should have his discharge upgraded, but

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we decided not to grant the additional relief. After thoroughly reviewing the transcript of the AFDRB hearing, we find the relief they granted a reasonable exercise of their authority, but feel that the relief requested of this Board exceeds what would be appropriate. We note first that the AFDRB does not use the error or injustice standard that governs the AFBCMR. Rather it uses the criteria of inequity and/or impropriety in determining whether the character of a discharge should be upgraded or whether the basis for a discharge should be changed. (Exhibit T) Secondly, its governing instruction specifically allows an upgrade even when there is not an inequity or impropriety based upon what can best be described as a consideration of all the surrounding facts and circumstances. (Exhibit T, DODI 1332.28, E4.3.3) In this case, it found the applicant's discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the sound discretion of the discharge authority. However, it appears the AFDRB had some doubt as to whether the advice given to the applicant by his ADC was possibly incorrect, doubt which this Board does not have as explained above. When factoring in the possibility of incorrect advice from counsel, the applicant's apparent stellar career, the fact the allegations were not confirmed by a third party and testimony given, the AFDRB found there was sufficient mitigation and extenuation to upgrade the applicant's discharge to honorable, change the narrative reason for discharge, and the RE code. However, we do not believe the AFDRB's findings in any way exonerate the applicant or undermine the gravity of the offenses of which he was charged. Since the applicant requested administrative separation rather than a court-martial, we do not have the benefit of that process. However, the applicant has not provided sufficient evidence the actions of the commander in this case, the decision to prefer court-martial charges, should be held to be arbitrary or capricious or otherwise to be an error or injustice. It should be noted that the commander had the benefit of the investigation into the allegations against the applicant as well as first-hand observation and interaction with all of the parties concerned. He and the Air Force were ready to proceed to trial; however, the applicant chose to avoid the possibility of a by requesting administrative separation. conviction Additionally, he made a conscious decision to waive lengthy service probation review of his record to make the offer more likely to be accepted by the government. The AFDRB had limited remedies and gave the ones they had. They did not and could not decide whether there was an error or injustice that supported the much broader remedies requested of this panel. 4. Finally, in arguing the applicant's position, his counsel opines that the only way this Board can make an informed and credible decision is to grant the applicant an "evidentiary hearing." We are cognizant that although the Court has not directed us to have a hearing, it states a hearing "may" be advisable. Applicant's counsel asserts that only an evidentiary hearing will conclude what the applicant was really told on the issue of a UOTHC discharge and future work in law enforcement. Even if an evidentiary hearing might assist in that

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determination, the point is our decision is not primarily based upon the specific content of that advice or even whether there was ineffective counsel. Whether the applicant was given good or even brilliant legal representation, the Board concludes he fundamentally understood the deal he was offered and we are not convinced he would have made a different choice had he been given different counsel. Since our ultimate conclusion is based upon our unwillingness to speculate as to what would have happened had the cane proceeded to trial and the fact that the applicant no longer has the UOTHC discharge he alleges he did not understand he faced, an evidentiary hearing is not necessary since it would not change our view.of what additional remedy is appropriate.

RECOMMENDATION OF THE BOARD:

The Board finds insufficient evidence of error or injustice and recommends the application be denied,

The following members of the Board considered this application in Executive Session on 11 July 2007, under the provisions of AFI 36-2603: Mr. Michael J. Novel, Panel Chair Ms. Karen A. Halloman, Member Mr. Wallace F. Beard, Jr., Member The following documentary evidence for AFBCMR Docket Number BC2003-01216 was considered: Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit Exhibit
H. ROP with Exhibits A-G. I. Court Remand. J. Letter, AF/JA, dated 7 Feb 02. K. Letter, AFLSA/CC, w/atchs (Ethics Inquiry). L . AFDRB Findings with transcribed testimony. M. Letter, AFLOA/JAJM, dated 11 May 0 6 , N . Letter, sAF/MRBR, dated 23 May 06. 0. Counselfs Rebuttal, dated 19 Jun 06. P Letter, SAF/MRBR, dated 13 Dec 06, w/atchs. Counselfs Rebuttal, dated 14 Feb 07, w/atehs. Q, Letter, SAF/MRBR, dated 17 Apr 07, w/atchs. R S . Counsel's Rebuttal, dated 15 May 07. T. DODI Number 1332.28, dated 4 Apr 0 4 .

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