Petition for Writ of Certiorari — Smith v. Department of the Air Force

. al

a

|. Supreme Court, U.S,

| ys. be ee

; (v)

86-242

MAY 19 1986

JOSEPH F. SPANIOL, JR.

CLERK

NO,

——

IN THE SUPREME COURT

of the

UNITED STATES

October Term, 1986

CHARLES W. SMITH,

Petitioner,

DEPARTMENT OF THE AIR FORCE

Respondents.

PETITION FOR A WRIT OF CERTIORARI 10

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

Mary E. Printers

5253 North Lovers Lane Rd.

Unit 314

Milwaukee, WI 53225

(414) 463-9977, (414) 264-1900

Pro Se to the Petitioner

BEST AVAILABLE COPY

QUESTIONS PRESENTED

Did Sgt. Kevin Beck of the Department of

the Air Force have the right to enter and

search and seize cigarette butts and

valium from Charles W. Smith vehicle and

wall locker without an affidavit support-

ing a search warrant.

Does the Department of the Air Force have

the right to discharge Mr. Smith with out

ever producing the officer doing the

search (Sgt. Kevin Beck) at any hearing,

proceeding without providing Mr. Smith

any opportunity to confront said witness.

Is the Department of Air Force excused

from producing the said witness (Sgt.

Beck) and allowing the heresay testimony

of Airman Michael Lande as to what Sct.

Beck did.

Is the Department of the Air Force excused

ii

or allowed to state that they have no

knowledge of Sgt. Beck's whereabouts

or no means to produce said witness

when the witness is still employed in

some branch of the Air Force?

Did Department of the Air Force violate

due process by not following prescribed

rules of the Fourth Amendment to the

United States Constitution in obtaining

a proper search warrant and proceeding

to dismiss the appellant from his employ-

ment.

Is the Department of Air Force excused

from obtaining vital answers to the quest-

ions from Sgt. Kevin Beck given under oath

to support the Dept. of Air Force's claim

that Sgt. Beck was the officer that

searched and seized property from Mr.

Smith's car and locker.

111

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Page

People vs. Azuilar, 223 C.A. 2d 119,

35 Cal. RPtr. S16 (1963) . 1. ws « © « 9

Mapp v. Ohio, 367 U.S. 643, 646 .... 9

Malloy v. Hogan, 378 U.S. 1,8 ..-s-« « 9

Boyd v. United States, 116 U.S. 6... . 10

STATUTES

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OPINION BELOW

The opinion of the United States Court

of Appeals for the Federal Circuit was decid

on November 18, 1985 and mandate on February

1986 (A ). This affirms the court's pre-

vious opinion, the Court of Appeal's order

denying a petition for rehearing En Banc (A

JURISDICTION

Jurisdiction of this court invoked by

U.S.C 1254 (1) Cases in the courts of appeals

may be reviewed by the Supreme Court by the

following methods:

(1) By Writ of Certiorari granted upon

the petition of any party to any

Civil or criminal case, before or

after rendering of judgment or

decree.

STATUTORY PROVISIONS

The Constitution of the United States

Articles of Amendment

Fourth Amendment states that:

"The right of the people to be secure in

their persons, houses, papers, and effects,

against unreasonable searches and seizures,

shall not be violated, and no warrants

shall issue but upon probable cause, sup-

ported by oath or affirmation, and partic-

ularly describing the place to be searched,

and the persons or things to be seized."

The Bill of Rights

Unreasonable Searches and

Selzures:

"The right of the people to be secure (safe)

unreasonable searches or seizures (arrests

or taking of belongings) of themselves,

their houses, their papers and effects

(other personal property) cannot be vio-

lateu. Warrants (written court orders)

for any of these purposes must be issued

with good cause, sworn to by an oath, and

must describe, in detail, the place to be

searched and the persons or things to be

seized. This protects persons from "writs

of assistance" (general warrants allowing

any search or seizure anytime anyplace)

Such as were used by the British."

The Constitution of the United States

To the Fourteenth Amendment Section 1 states:

"All persons born or naturalized in the

United States, and subject to the juris-

diction thereof, are citizens of the

United States and of the state wherein

they reside. No state shall make or en-

force any law which shall abridge the

privileges or immunities of citizens

of the United States; nor shall any

state deprive any person of life, lib-

erty, Or property without due process

of law; nor deny to any person within its

jurisdicition the equal protection of the Law.

STATEMENT OF THE CASE

Mr. Charles Smith was discharged from

his position as a warehouseman for the U.S.

Air Force on Air Force Base veaiicumeibi

son. He had bee employed there for 17 years.

On June 21, 1984, Mr. Smith's unlocked car

was searched, because a police dog (Herc) sat

between two cars. The search, and contacts

to Judge Advocate was made by telephone and

all contacts immediate to this search were

done by Sgt. Kevin Beck. Sgt. Kevin Beck

claims that he found two cigarette butts on

the floor of the car. A subsequent search of

Mr. Smith's on-base locker found vaiium pre-

scribed to his mother Ms. Mary Printers.

Mr. Smith was discharged from his job and

denied all claim to his benefits.

At a hearing in front of the Merit System

Protection Board, (November 1, 1984) Sgt.

Kevin Beck was not produced. The Air Force

claimed they covld not find him, and offered

instead the testimony of Airman Michael Lande

whose participation in the proceedings were

limited by standing behind the car, and being '

told of Sgt. Kevin Beck findings, by Sgt.

Kevin Beck at no time was Charles Smith ever

able to confront, or question Sgt. Kevin Beck

or to defend himself against these allegations.

REASONS FOR ALLOWING THE WRIT

1. This is a case of Constitutionality, if

this court does not prevail and this decision

of the United States court of appeals for the

Federal Circuit is allowed to stand its con-

flicts with the very privileges of the United

States Constitution under the Fourth and

Fourteenth Amendment.

a If the Court allow the decision of the

Merit System Protection Board to stand when

the petitioner has neither had opportunity to

confront his accuser and questions handed

down by the Merit System Protection Board have

never been answered.

U.S.C. 4th A. Specifically, agents of the

Department of the Air Force testified that

they entered and searched the defendant's

automobile without consent or warrant, ap-

parently in belief that undefined conduct of

a dog constituted probably cause. There was,

however, no suspect in sight on which to fast-

en the concept of a crime in progress and the

search violated the Fourth Amendment rights

of petitioner in that there was insuffi-

cient evidence to constitute probable cause

of a felony in progress or a felony by the

petitioner at any time. The initial search

being illegal it could not serve as the basis

for a legal warrant. No where in the testi-

mony is there a list of factors which would

cause the dog to sit in between cars as he

did. Therefore, one must know a signgularity

of dog's sitting could not even stand up to

the question of a fact which would support

probably cause. Assumptions, obviously, are

not facts.

4. Further, testimony reveals that the Air

Force Base Commander gave oral approval for

the search without taking any testimony

except an erroneous legal conclusion of a

captain, thus, violating defendant's consti-

tutional right to due process supported par-

ticularly by the Fourth Amendment's guaranteed

oath or affirmation without which a warrant

cannot issue.

5. The form 1176 obviously was not obtained

at 9:03 on June 21, 1984, but sometime later,

it appeared from the record that "search ap-

proval prior to search was verbal. It is not

contested that the auto was open not locked.

Further, to convict someone of possession

of a controlled substance, it must be proved

that the defendant was in possession of the

drug and that he knew or believed he was in

possession.

Awareness of the defendant of the presence

of the cigarette butts is the ultimate test of

possession.

Even if the government had introduced

evidence that the defendant knew the butts

were on the floor of his car, they would still

have to show that the cigarette butts was in

such form, bulk, quality and quantity that

knowledge could be imputed to him. Here,

there is no evidence of his knowledge or that

if he did see the butts, he should have known

what they were, the sample being as small as

it was.

6. This point also is critical. The record

is void of evidence that the defendant knew

the butts were present in his car. The burden

of proof is on the government. It is a not a

question of the quality of defendant's answer.

Further, there is no testimony in the record

to demonstrate that an ordinary person would

have known the materials, from their form,

were drugs. Restated, there is not in this

record any evidence by which anyone could

reasonably impute knowledge to the defend-

ant. People vs Azuilar, 223 C.A. 2d 119,

35 Cal. RPtr. 516 (1963).

7. “This Court in Mapp v. Ohio, 367 U.S. 643,

646, recognized as the Court had in Boyd that

"the Fourth and Fifth Amendments run almost

into each other." 116 U.S., at 630. At the

very outset of its opinion in Mapp this Court

relied on and quoted at length from the opin-

icon in the Boyd case, which had relied on the

Fourth and Fifth Amendments together to for-

bid the use in court of evidence obtained

through an unreasonable search or seizure.

367 U.S., at 646-647. Use of such evidence,

the Court said in Mapp, would be "tantamount

to coerced testimony." 367 U.S., at 656.

And we said last Term in Malloy v. Hogan,

378 U.S. 1,8:

"Mapp held that the Fifth Amendment priv-

ilege against self-incrimination implement-

ed the Fourth Amendment in such cases, and

oe

10

that the two guarantees of personal se-

curity conjoined in the Fourteeth Amend-

ment to make the exclusionary rule obli-

gatory on the States. We relied upon the

great case of Boyd v. United States, 116

Uses GEO « « « 2”

It was because of the Court's reliance on the

Boyd doctrine--which held that the Fourth and

Fifth Amendments together barred use of unrea-

sonably seized evidence--that I joined the

Court's opinion in Mapp. See 367 U.S. 643,

661 (concurring opinion). And for that same

reason I agree with the Court Today that the

Fourth Amendment's protection against unlaw-

ful search and seizure and the Fifth Amend-

ment's protection against compelled testi-

mony apply in forfeiture proceedings like

the one here. This was the holding in Boyd,

which itself involved a forfeiture proceeding,

and I would follow it in forfeiture pro-

ceedings as well as in criminal cases. In

doing so, I recognize that this interpretation

11

was reached in Boyd on the principle that

"constitutional provisions for the security

of person and property should be liberally

construed." 116 U.S., at 635. But that

interpretive principle, I think, is desirable

on if our Constitution is to be given its

proper place in our Government.

I also agree with the Court that our re-

mand expresses no view as to whether the tria:

court was correct in its ruling on the issue

of probable cause, and that the Supreme Court

of Pennsylvania is free on remand to review

the trial court's finding, and that of course,

as declared in Mapp, the standard of probable

cause is the same in the state courts as in

the federal courts."

The petitioner was not arrested or chargec

by Sgt. Kevin Beck and was told to return

back to work, so the petitioner worked from

June 21, 1984 until his dismissal.

This above statement verifies that Sgt.

BEST AVAILABLE COPY

ee:

12

Kevin Beck found no drug problem with Charles

W. Smith, also it establish that Sgt. Beck

found no wrong doing of Charles W. Smith.

Since the petitioner was not arrested

or charged by policeman Sgt. Kevin Beck, Mr.

Robert Scott the proposing official and Major

Joseph L. Reuwer deciding official had no

right to discharge Charles W. Smith without

being charged for a crime.

Under Section 1983 the respondants made

and enforce a law that deprived the petitioner

his privileges of working for a living, due

process of law and the equal protection of

the law. All of which is in violation of the

laws of the United States and the State of

Ohio.

13

CONCLUSION

For the reasons set forth above, the

Petition for a Writ of Certiorari should be

granted.

Respectfully submitted

MARY E, PRINTERS

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Zé — had Ce OO y Pe

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By Mary E. Printers

Pro St to the Petitioner

(A-1)

UNITED STATES COURT OF APPEALS

for the FEDERAL CIRCUIT

CHARLES W. SMITH,

Petitioner,

V. No. 85-2499

DEPT. OF THE AIR FORCE,

Respondent,

i i ll

ORDER

A petition for rehearing and a suggestion

for rehearing in banc having been filed in

this case,

UPON CONSIDERATION THEREOF, it is Ordered

by the court that the petition for rehearing

be, and the same is hereby, Denied.

The suggestion for rehearing in banc is

declined.

FOR THE COURT

Francis X. Gindhart,

Clerk

February 18, 1986

A-2

UNITED STATES COURT OF APPEALS

for the FEDERAL CIRCUIT

CHARLES W. SMITH,

Petitioner,

Vv. No. 85-2499

DEPT. OF THE AIR FORCE,

Respondent,

meee eee ee”

ORDER

Decided November 18, 1985 the entered

judgment issued as a mandate February 27,

1986. We affirm on the basis of the Board's

opinion because we do not find that’ the

Board's decision was arbitrary capricious and

abuse discretion or otherwise not in accord-

ance with law or that it was obtained with-

out procedures required by law rule or regu-

lation having been followed or that it was un-

Supported by substantial evidence 5 U.S.C Sec.

7703 (c) (1982) see Hayes U.S. Department of

the Navy 727 F. 2d 1535, 1537 (fed.) cir.

(1984).

FOR THE COURT

Francis X. Gindhart,

Clerk

CHARLES W. SMITH,

Petitioner,

Vv. Proposal to Remove

DEPT. OF THE AIR FORCE,

Respondent,

The proposing official, Mr. Robert Scott

stated in his letter dated July 19, 1984 that,

1) It is proposed to remove you from your

position with the Air Force not earlier than

30 calendar days from the date of receipt of

this letter for possession of marijuana an

schedule IV substances (Valium) on Wright-

Patterson Air Force Base on 21 of June, 1984;

and to promote the efficiency of the service.

2) At spprocinesely 0850 on 21 June 1984,

Sgt. Kevin Beck while on routine patrol, in

the parking lot adjacent to Building 257, Area

C, Military Working Dog Here responded to

the drivers side door searm of a 1977 white

over blue Chysler, Ohio License MKL 273. A

leads check of the license number identified

you as the registered owner. AIC Michael

Lande stood by your vehicle while Sgt. Beck

made contact with the Staff Judge Advocate,

Capt. Woodard, at approximately 0900 and

advised her of the MWD's response. She

stated probable cause did exist. At ap-

proximately 0903, Sgt, Beck contacted Col.

Jay Strayer, Acting Base Commander and

advised him of the MWD's reponse and advised

him that Capt. Woodard stated probable cause

did exist. Col. Strayer granted Sgt. Beck

the authority to search your car. Sgt. Beck

made contact with you and advised your of the

MWD's response. A search of your vehicle

revealed two handrolled cigarette butts

(roaches) on the floor board in front of the

drivers seat. Sgt. Beck then advised you of

your rights under the Fifth Amendment of the

U.S. Constitution, the nature of the offense

being investigated and your right to counsel.

You acknowledged that you understood your

| — _/j

A-6

rights and waived same. Sgt. Beck the asked

you for consent to search your wall locker in

Building 257, Area C, and you gave Sgt. Beck

permission to search your locker. A search

of your locker revealed an amber colored

container with the name of Mary Printers on

the label. It contained seven each yellow

tablets scored on one side and marked "Roche

5 Valium" and 5 broken pieces of this type

tablet, and one blue tablet scored on one

Side and marked "Roche 10 Valium." All items

confiscated as evidence via AF form 52. The

two handrolled cigarette butts were analyzed

microscopically and chemically and found to

contain Cannabis, commonly known as marijuana.

The tablets marked "Roche 5 Valium and "Roche

10 Valium" were identified as valium which is

a schedule IV controlled sbstance. Possession

of Marijuana and schedule IV controlled sub-

stance (Valium) is prohibited on Wright-Pat-

terson Air Force Base.

A-7

3) You are reminded that you received a ten

calendar day suspension effective on 23 April

1984 for possession of marijuana and valium

an Wright-Patterson Air Force Base on 8

February 1984. This previous offense was

also considered in arriving at the decision

to propose your removal.

4) You may reply to this letter personally

in writing, or both to me (Area C, Building

257, Post 825, extension 74848), to Mr. Andrew

P. Robbins (Area C, Building 257, Post 825,

extension 74848), To Mr. Richard C. Chavers

(Area C, Building 257, Post 825, extension

3919), to Mr. k. Aldon Woolley (Area C,

Building 1, Room 4, extension 76158), or to

Major Joseph Reuwer (Area C, Building 1, Room

4, extension 76158). You may also submit

affidavits or other documentary evidence in

support of your reply. In addition, you may

be accompanied by an attorney, a union repre-

sentative, or other representative of your

choosing in accordance with the criteria out-

ee

A-8

lined in AFR 40-750 when making your reply.

it is necessary that a memorandum be made of

the principal points of any oral reply that

you make. Therefore, you must inform any of

the above named supervisors to whom you are

replying at the beginning of your conver-

Sation that you intend your conversation to

be an oral reply to this proposed action.

5. You will be allowed 10 calendar days from

the date of your receipt of this notice to

reply. Consideration will be given to extend-

ing this time limit if you submit a written

request stating your reasons for desiring more

time. This right to reply is a significant

right granted you. If you believe this pro-

posed action is unwarranted, it is important

that you reply stating completely all the

reasons supporting your belief.

6. If you wish to review the regulations

pertinent to this action or review the mater-

ial being relied upon to support this action,

A-9

or obtain advice and assistance in preparing

your reply, you may contact your Employee

Relations Specialist, Mr. Warren D. Clark,

Building 274, extension 72481. An appoint-

ment will be arranged by your supervisor upon

your request.

7. If you are otherwise in an active duty

status, you will be allowed 8 hours of offic-

ial time off from your job without charge to

leave for reviewing all the material being

used to support the reasons in this notice,

for securing affidavits and other document-

ary evidence in support of your reply. Your

request for official time off from your job

must be requested by you from the undersigned.

8. No decision to remove you has been made

Or will be made until you reply, or until

the time limit for your reply has expired if

you do not elect to reply. Any reply you

make will be given careful consideration be-

fore a final decision is made. Whether or

Wi Ben

A-10

not you reply, a written notice of final deci-

Sion will be given you.

9. If you do not understand the above reasons

for this proposed action, contact me for fur

ther explanation.

10. No action based on the reasons set forth

herein, will be taken to remove you from duty

status in your present position during this

30 calendar day advance notice period.

ROBERT B. SCOTT

Warehouse Foreman

DATE OF DELIVERY: July 19, 1984

TIME OF DELIVERY: 1530

A-11

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

Case Number:

CHO 7528410667

Charles W. Smith

T.

Date :

Dept. of the Air Force January 2, 1985

ed i

INTRODUCTION

By petition filed on August 30, 1984, Charles

W. Smith appealed an action wherby the Depart-

ment of theAir Force, Wright-Patterson Air

Force Base, Ohio removed him from his position

as a Warehouse Worker, WG-06. His removal,

effective August 24, 1984, was based on

charges of illegally possessing marijuana and

valium on the agency's premises. A hearing

was held on this matter on November 1, 1984.

JURISDICTION

A Federal employee may appeal to the Merit

A-12

Systems Protection Board from any action

which is appealable by law, rule, or regu-

lation. 5 U.S.C.A. 7701(a) (West 1980). The

appellant has an appeal right to the Board

under the provisions of 5 U.S.C.A. 7511-7513

(West 1980) and 5 C.F.R. 752.401 and .405

(1984).

ANALYSIS AND FINDINGS

The agency proposed the appellant's removal

because he allegedly illegally possessed

marijuana and a schedule IV substance (valium)

on the premises of Wright-Patterson Air Force

Base on June 21, 1984. To support its charge

the agency produced an Incident/Complaint

Report dated June 22, 1984 (Agency File at

tab 8g), wherein it states that at approxi-

mately 8:50 a.m. on June 21, 1984, while on

routine patrol in Area C, a military working

dog named Herc, responded to the driver's

side of a 1977 white over blue Chrysler,

License #MLK-273, in the parking lot adjacent

A-13

to building 257. Sgt. Kevin Beck, Herc's

handler, contacted Base Security Police Head-

gGuarters via radio and learned that the vehicle

to the appellant. AIC Michael D. Lande, who

accompanied Sgt. Beck on the patrol, stood

by the appellant's vehicle while Sgt. Beck

contacted Captain Woodard of the Staff Judge

Advocates Office. Captain Woodard expressed

her opinion that probable cause existed to

search the vehicle. Sgt. Beck then contacted

Colonel Strayer who grated him authority to

search the appellant's vehicle. Sgt. Beck

also contacted the appellant who was present

when the vehicle was searched. A search of

the vehicle cevenied two handrolled cigarette

butts on the floor in front of the driver's

seat. The appellant was read his fifth

ammendment constitutional rights and the ap-

pellant acknowledged he understood his rights

and waived them. Sgt. Beck then requested

and received permission from the appellant

A-14

to search the appellant's wall locker in

building 257. A search of the locker reveal-

ed an amber colored container which contained

various colored pills. The cigarette butts

and amber container containing pills were con-

fiscated, tagged, and taken as evidence. The

cigarette butts, Exhibit 1, were analyzed

microscopically and chemically and found to

contain Cannabis, commonly known as marijuana.

Exhibits 2B and 2C, pills found in the amber

container, were presumptively identified is

valium, which is a scheduled IV controiled

substance.

AIC Lande testified that he prepared the

written report found at tab 8g of the agency's

file. He also testified to the incidents

that occurred on June 21, 1984. His testi-

mony paralleled the information contained

in his written report. The agency also pro-

duced a report from the Miami Valley Regional

Crime Laboratory, Dayton, Ohio, indicating

the yellow and blue tablets marked as valium

oer

A-15

were analyzed and found to contain diazaeplam,

a schedule IV substance (Agency File at tab

8h). The Chief of Criminal Investigations

testified that he performed the microscopic

and chemical analysis of the cigarette butts

in question and found that they contained

cannabis, commonly known as marijuana.

The appellant alleges that he was not in "pos-

session" of the cigarette butts and pills in

question because they were not found on his

person. He further alleges that his girl

friend planted the two "roaches" (referring

to the cigarette butts) in his car on June

21, 1984, without his knowledge. He further

alleges that the valium tablets found in his

locker belonged to his mother, were from a

prescription filled back in 1977 or 1978,

and that he had just forgotten them in his

locker. He also alleges that he had been

prescribed valium in the past and therefore

was in legal possession of the valium.

A-16

To support his allegation that the mari-

juana was planted, the appellant produced a

sworn affidavit signed by a Gloria Turman,

dated August 8, 1984, wherein she states that

in the early morning of June 21, 1984, she

placed two roachesin the appellant's car be-

cause she was angry with him after a domestic

argument. She then stated that she called

the Base and notified Base officials that the

appellant had a gun in his car. She knew

there was no gun in the car, she stated, but

wanted Base officials to find the two roaches

she had planted. See Agency File at tab 3.

The appellant also produced a letter signed

by Mory Summer, M.D., indicating that valium

had been prescribed to the appellant in August

of 1983 (Appellant's Hearing Exhibit 1).

My review of the record finds that a pre-

ponderance of the evidence supports the

agency's charge that the appellant illegally

possessed marijuana and valium on the agency's

A-17

premises on June 21, 1984. As the agency

correctly pointed out in its closing argument,

possession does not mean an illegal substance

is found on the person of the individual

who is so accused. The agency correctly cites

United States v. Staten, 581 F.2d 878, 879

(D.C. Cir. 1978), for the legal principle

that it is unnecessary to show that the

accused had the drug on his person or within

his immediate reach; it is enough that he was

knowingly in a position or had the right to

exercise dominion and control over it, either

directly or through others. The court also

stated that possession can be established by

circumstantial evidence.

In this case I do not find it credible that

the marijuana was planted in the appellant's

vehicle without his knowledge. AIC Lande ;

testified that the military working dog,

Herc, responded to the marijuana during a |

routine patrol. AIC Lande denied that any

;

call was received that singled out the appel-

A-18

lant's vehicle to be searched. The agency

also produced its Security Police Desk Blot-

ter for June 21, 1984, and no call concern-

ing the appellant's vehicle is recorded

(Agency Hearing Exhibit 8). With respect to

the valium found in the appellant's wall

locker, I find that the appellant's possession

constitutes an illegal possession of a con-

trolled substance. I do not find thet a pre-

scription to take valium in August of 1983

constitutes a legal basis for being in

possession of valium on the agency!s premises

on June 21, 1984. Therefore, I find that the

agency's charge of illegal possession

of marijuana and valium on the agency's

premises is sustained.

In addition to contesting the charge, the

appellant also alleges that the agency's act-

ion is invalid due to harmful procedural error

1) Specifically, he claims that the documents

used by the agency to support and or take

this action contain errors of omission and/or

A-19

differed from the original documents. With

respect to the Incident/Complaint Report Dated

June 22, 1984.(Agency File at tab 8g), the

appellant cites the lack of signatures, miss-

ing information, and misplaced information as

examples of harmful error. My review of the

document finds that even if the examples cited

by the appellant constitute error, the errors

are not harmful. That is, the errors cited

do not materially affect the completeness

or reliability of the.information stated on

the form. Moreover, AIC Lande independently

testified to the events that support the

charge and are reported on the Incident/

Complaint Report. The appellant also claims

that the agency committed harmful error by

inserting in the record copies of the proposed

removal notice and the decision notice that

are not identical ‘a the Originals. Even

assuming, arguendo, the agency committed

error in this regard, the appellant has fail-

ed to show that any differences in the docu-

A-20

ments are material. My review of the docu-

ments in question find no change in the bodies

of the documents. The only differences are

immaterial matters such as a coordination

stamp placed on the bottom of the of the copy

of agency's July 19, 1984, proposed removal

notice (Agency file at tab 2). Therefore, I

find that the agency had committed no harmful

procedural errors.

In light of my finding that the agency sup-

ported its charge by a preponderance of the

evidence, I will consider whether taking ad-

verse action based on the sustained charge

promotes the efficiency of the service. The

Board has upheld adverse action based on the

same type of charge proven in this case. See

Swann v. Tennessee Valley Authority, MSPB

Docket No. AT075209257 (November 15, 1983),

(adverse action found appropriate in case

where employee possessed a controlled sub-

stance on the agency's premises); Rice v.

Department of the Air Force, 9 MSPB 833

A-21

(1982), (upheld removal after second incident

of finding marijuana in employee's vehicle on

the agency's premises). Accordingly, I find

that the agency has shown a nexus between the

appellant's proven misconduct and the effici-

ency of the service.

I have also considered whether removal is an

appropriate penalty in light of the Board's

holding in Douglas v. Veterans Administration,

5 MSPB 313 (1981). Therein the Board stated

that in selecting a penalty an agency must

strike a responsible balance within the toler-

able limits of reasonablesness. The Board

further identified the type of factors an

agency should consider in determining the

appropriateness of its penalty. In this case

the record discloses that the deciding offi-

cial, Major Reuwer, gave detailed consider-

ation to the pertinent Douglas factors prior

to making his decision (Agency File at tab 2).

Major Reuwer also testified that the fact

that the appellant had been recently suspend-

A-22

ed (on April 20, 1984, Agency File at tab 8e)

for the identical misconduct was an important

factor in deciding to remove the appellant

this time. He found the appellant's fully

Satisfactory performance and length of service

insufficient to mitigate the serious, repeat-

ed misconduct at issue. The agency also sub-

mitted its table of peanalties indicating

that the removal action was in accordance with

published agency guidelines (Agency Hearing

Exhibit 7). In light of the deciding offici-

al's review of the penalty and the Board's

holding in the similar case of Rice (cited

above), I find that the removal action is

within the tolerable limits of reasonableness.

DECISION

The removal action is affirmed.

The decision is an initial decision and will

become a final decision of the Merit Systems

Protection Board on February 6, 1985 unless

a petition for review is filed with the Board

a

—=_

A-23

reopens the case on its own motion.

ADMINISTRATIVE AND JUDICIAL REVIEW

Any party to this appeal, the Director of the

Office of Personnel Management, and the

Special Counsel may file a petition for review

of this decision with the Merit Systems Pro-

tection Board. An original and two copies of

any petition for review must be filed with

the Clerk of the Board for the Merit Systems

Protection Board, 1120 Vermont Avenue, N.W.,

Washington, D.C. 20419 no later than the date

cited above.

The petition must identify specifically the

exception taken to this decision, cite the

basis for the exception, and refer to appli-

cable laws, rules, or regulations. The Board

may granta petition for review when a party

submits written argument and supporting docu-

mentation which tend to show that:

(1) New and material evidence is

available that, despite due

A-24

diligence, was not available

when the record was closed; or

(2) The decision of the presiding

official is based on an erro-

neous interpretation of statute

or regulation.

Pursuant to 5 U.S.C. Section 7703(b) (1), the

appellant has the right to seek judicial re-

view of the Board's final decision on this

appeal. (The foregoing statement is not to

be interpreted as a basis for establishing

court jurisdiction where such jurisdiction

does not otherwise exist.) A petition re-

questing such review must be filed with the

U.S. Court of Appeals for the Federal Circuit

717 Madison Place, N.W., Washington, .D.C.

20439. Such a petition may not be filed whil

the case is pending before the Board. To be

timely, the petition for judicial review

must be received by the court with 30 days of

the final Board decision.

BEST AVAILABLE COPY

A-25

For the Board:

Victor W. Russell

Presiding Official

A-26

Mr. Victor W. Russell

U.S. Merit Systems Protection Board

Chicago Regional Office

John C. Kluczynski Bldg.

230 S. Dearborn St. - 3ist floor

Chicago, Illinois 60604-1669

Pursuant to your order in the case of Charles

W. Smith v. Department of the Air Force,

counsel for the agency submits a list of

anticipated witnesses, requesting that they be

approved to testify at the hearing scheduled

for 1 November 1984.

1. Rober D. Scott - proposing official.

2. Major Joseph L. Feuwer - deciding

official.

3. Sgt. Kevin Beck - involved in search

which resulted in the discovery

of materials leading to the discip-

linary action in issue.

4, AIC Michael Lande - present during

the search of appellant's auto-

mobile.

5. William F. Lyon - evidence custodian;

re chain of custody.

A-27

Respectfully submitted,

Charles A. Buenning, Jr.

Attorney-Advisor

Agency Representative

Hereby certify that I have served copies of

the foregoing to the following parties this

Gate by regular mail.

Charles W. Smith

2626 Germantown, Apt. 7

Dayton, Ohio 45408

Mary Printers

5253 Morth Lovers lane

Milwaukee, Wisconsin 53225

A-28

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

Charles W. Smith Case No.

CHO 7528410667

Vv.

Date: November 1, 1984

Dept. of the Air Force

Opening Statment in

Parts

me eee ee ee ee

Then we discussed the witness that was to

be called, and I had ordered that the agency

produce the same witnesses that the appell-

ant requested that agency was going to call,

and we discovered this morning that Sgt. Beck

wasn't here. The agency indicated Sgt. Beck

has completed his tour of duty with the Air

Force Base, and that he subsequently joined

the Marines Corp. He is no longer engaged

Air Force Employee. "I indicated that I was

concerned about that", because I anticipated

as the appellant, that Sgt. Beck would be here

and the agency did not make him available

A-29

and I explained that the board expects when

the employee is still an employee of the

government, even though he is not an employee

of the agency involved, that efforts still be

made available so long as he is a government

employee. I indicated that I would ask Ms.

Printers if she would give me the questions

that she has to ask of Sgt. Beck. I would

indicate which I thought was most pertinent

that the agency also would have an opport-

unity to ask questions in writing to Sgt.

Beck, and that the agency would serve those

guestions that they plan to ask on Ms. Printers

and of myself, and then I would put the re-

sponsibility on the agency to produce a

written response from Sgt. Beck to the quest-

ions on the'appellant, and the agency and

I have not set a time frame for that. I want

to think about it a little further and discuss

it a little bit further. Please remind me

before we end this hearing to try to establish

== ne

A-30

a time frame for accomplishment of that.

This would be the chain of command that the

proposal went through.

For the Board:

Victor W. Russell

Presiding Official

ee

A-31

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

Charles W. Smith

Ve

Department of the Air Force

de

AGENCY ORDERED TO OBTAIN

KEVIN BECK'S RESPONSES TO

QUESTIONS

Pursuant to my ruling at the hearing on the

above-captioned matter, the agency is here-

by ordered to obtain Mr. Kevin Beck's

responses to the following questions. Mr.

Beck's responses must be sworn and in writ-

ting. The agency shall return his responses

to me no later than November 23, 1984. The

responses shall be served on the appellant

by the same date.

AGENCY'S QUESTIONS:

A-32

Do you recall any contact between your-

self and appellant, Mr. Charles W. Smith

on 21 June 1984?

Assuming that the answer to 1 above is

"yes," were you assigned as handler of a

military work dog named Herc on that date?

How long had you worked with Herc, if you

were in fact his handler?

Did AIC Lande accompany you during duty

hours on 21 June 1984?

If you encountered Mr. Smith on 21 June

1984, what were the causes and circum-

stances?

How did you come to be in the parking

lot adjacent to Bldg. 257 on 21 June

1984?

To your knowledge, were you directed to

search Mr. Smith's car on 21 June 1984

because of reports that he had a gun

therein, or were you on regular patrol 7

Did Herc alert on Mr. Smith's, car?

10.

il.

id.

i3.

14.

15.

16.

iv.

A-33

If so, how did he do that?

Who secured permission to search Mr.

Smith's car, and how was that done?

Who search the car? Where was the non-

Searching officer during the search?

What was found during the auto search?

Where? Was the material in plain view?

What, if anything, did you tell Mr. Smith

regarding his rights after the auto search?

If material was taken from the auto, what

was done with it?

What was taken from appellant Smith's

locker in building 257, if anything?

If items were taken from the locker, what

was done with them?

What was base policy regarding obtaining

written confirmation of verbal search

authorizations given by the Base Com-

mander as of 21 June 1984?

Block 9 of the incident report states that

wt din taketh ern ae areal thie Lesueaal ne thet de aww

dea MVE at is Sawn Sn BO BS LAIN bw Oodle ers Sites 5 Se

rhe haw wih veembttwane ve le aha

Lethe

a

A-34

the report was received by AIC Somora.

Which officer reported the incident and

how?

APPELLANT'S QUESTIONS:

1.

Will you please explain whether and, if

so, how you filled ou ~ an incident report

on this matter?

Were you conducting an investigation or

were you on a routine check on June 21,

1984?

Did the drug dog respond to Mr. Smith's

person? If not, why not?

The incident report was made out June 22,

1984 but the incident occurred on June 21,

1984, in the early working hours. Will

you explain why it took so long?

Was a complaint concerning Mr. Smith re-

ceived by AIC Somora/Dispatcher via

radio on June 21, 1984?

Were you looking for a gun in Mr. Smith's

car?

10.

il.

> -

A-35

The incident report states that the com-

plaint time was 0820 hours ad the dogs

responded at 0850 hours. Mow can it be

both?

Is there any police report to back up Mr.

Scott's charges that Mr. Smith was in

possession of marijuana and valium?

Is there any regulation forbidding the

use of and the bringing of valium on the

Air Force Base?

Was there any crime lab report on the so-

called "butts" to verify the contents?

Isn't true that the incident report does

not reveal that butts were found on the

floor of Mr. Smith's car?

Isn't it true that the incident report

does not reveal that valium was found in

Mr. Smith's locker?

For the Board:

Date: November 6, 1984 Victor W. Russell

Presiding Official

:

3

A-36

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

CHARLES W. SMITH

V..

DEPT. OF THE AIR FORCE

MOTION TO RESCIND

ORDER OF

NOVEMBER 6, 1984

me ee ee ee ee eee ee ee”

Now comes the Department of the Air Force and

moves that the "Order to Obtain Kevin Beck's

Responses to Questions,"dated 6 November 1984,

be rescinded. The Agency has been unable,

after extensive efforts stated in the attached

affidavit of Mr. Warren D. Clark, to locate

this witness. Given

that AIC Lande, Kevin

Beck's partner, testified at hearing as to the

circumstances of the

issue, there exists

make a determination

and propriety of the

searches and seizures in

sufficient evidence to

as to the sufficiency

action.

Respectfully submitted

CHARLES A. BUENNING, JR.

Agency Representative

y

A-37

AFFIDAVIT

STATE OF OHIO

COUNTY OF GREENE

i i i

Being first duly cautioned and sworn, now

comes Warren D. Clark and states the follow-

ing: I, Warren D. Clark an Employee Relations

Specialist assigned to the 2750 Air Base wing

Civilian Personnel Office at Wright-Patterson

Air Force Base, Ohio, do hereby certify that

on 7, 8 and 9 November 1984 the foliowing

efforts were made by me to contact former

Sergeant Kevin P. Beck, SSN; 275-58-8285

who after his enlistment joined the United

States Marine Corps and was to be in basic

training at Parris Island, South Carolina.

On 7 November 1984, the World Wide Locator

was called (1-202-694-1624) and I was in-

formed that Kevin Beck was assigned to the

Receiving Administration Center at Parris

Island, South Carolina. The operator at

A-38

there. On 8 November 1984, I called the Base

Commander's Cffice at Parris Island (832-

2535) and I was informed that Kevin P. Beck

was not stationed at Parris Island. I then

called the Marine Corps Base at Camp Lejeune,

North Carolina on AUTOVON 484-1110. The

operator transferred my call to the Admini-

stration Center and they informed me that

Kevin Beck was not stationed there. I then

called the operator at Portsmouth Naval Ship

Yard on AUTOVON 684-0111 and she transferred

my call to the Marine Barracks and was inform-

ed that Kevin Beck was not stationed there.

I called Norfolk Naval Ship Yard on AUTOVON

961-0111 and the operator transferred my call

to the Marine Barracks. They also informed

me that Kevin Beck was not stationed there.

On 9 November 1984, I called Marine Corps

Headquarters (227-0101) Washington, D.C. The

operator transferred me to the Marine Barracks

and they also imformed me that Kevin Beck was

not stationed there. I again called the

A-39

World Wide Locator (1-202-694-1624) and I was

informed that Kevin P. Beck, SSN: 275-58-8285

was shown as being assigned to the Receiving

Administration Center at Parris Island, South

Carolina. I again called the Receiving Ad-

ministration Center at Parris Island (832-

2946) and they again informed me that Kevin

Beck was not stationed there. On 15 November

1984, I called the World Wide Locator again

and Kevin P. Beck, SSN: 275-58-8285 was

still shown as being assigned to the Receiv-

ing Administration Center at Parris Island,

South Carolina. I have been unable to locate

Kevin P. Beck as directed by Mr. Victor Rus-

sell, Hearing Examiner for the Merit Systems

Board, Chicago, Illinois.

Sworn to and subscribed in my presence, this

16th day of November 1984.

WARREN D. CLARK

Employee Relations Specialist

Labor and Employee-Management

Relations Section

Civilian Personnel Branch

A-40

STATE OF OHIO

COUNTY OF GREENE

Subscribed, sworn to and acknowledged

before me by WARREN D. CLARK this 16th day

of November 1984.

(SEAL)

Notary Public

Vicki L. Burns

In and for the State

of Ohio

My Commission Expires

April 30, 1986

A-41

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

November 1, i984

Charles W. Smith

Hearing: Pertinent

ll

Vv. Parts of

AIC MICHAL LANDE"S

Dept. of the Air Force Testimony

BY MR. BUENNING :

Q How do you get authoriztion?

A What we do is to call over the phone

and we swear to everything, and they give us

the authorization. Then we have .. . we type

this out and in 24 hours to swear and get in

writing.

Q You are saying you get a verbal

authorization, yes or no, followed by a writ-

ten authorization?

A We get a verbal yes or no, and in

this case we got a verbal yes, and have it up

there in 24 hours.

fe) Airman Lande, after you got the

A-42

approval from Colonel Strayer, what happened

next?

A Okay, we went back out to the car

and contact was made with Mr. Smith. Sergeant

Beck advised him of the dog's response and

told him that we had authority to search the

vehicle and I don't remember if the car was

locked or not, but we went ahead and opened

the car and we started to search the car --

well, I'm sorry, Sergeant Beck searched the

car and --

Q Where were you during that time?

A Okay, Sergeant Beck was searching

the car and Mr. Smith was standing behind

Sergeant Beck and because I was Sergeant

Beck's backup, I was standing behind Mr. Smith

with my dog.

Q Okay. And, did you observe the

search?

A Yes.

Q Okay. And, what happened then?

A All right. So, Sergeant Beck was

Searching anc I cuess he was searching the

A- 43

front seat and the back seat. And when ne

got up to the front seat, and underneath,

driver's side-front seat, just on the floor

board of front seat, found 2 cigarette butts.

Q Okay. Now, after you and Sergeant

Beck and the dog came to Mr. Smith's car and

the dog alerted, what happened next?

A All right. Sergeant Beck went into

building 257 and calied captain Woodword, who

is the Staff Judge Advocate. I think that

was at 9:00. And, what he does is -- well,

what we have to do is we have, she has to

State probably cause existed. So, once we

explained the events that had happened,

we'll say the dog we walking through the park-

ing lot 257, Herc responded on a car, license

plate MKL 273, he responded by sitting and

she'll ususally yes, probably cause existed,

go on and call the Base Commander and see if

you can get a search warrant.

Q Okay. Is this the customary ope-

rating procedure?

A-44

A Yes, when we get a search warrant.

Q You had done that before?

A Yes.

Q Okay.

A

Okay. And then we called the Base

Commander and I guess the Acting Base Com-

mander at that time was Colonel Strayer and

we'll explain the events again to him and

we'li explain that Captain Woodword or the

Staff Judge Advocate said probably cause

existed and he'll either give us authority

to search or not.

Q Okay. I'll show you a document now

which we'll label proposed Agency Exhibit 5

and ask you if you can identify what that

document is.

(WHEREUPON, Agency's Exhibit 5 was

marked for identification.)

A All right. This is our authority

to search and seize and Air Force Form 1176

and we fill this out, we type it up and we

just give it -- send it up to the Base Com-

A-45

mander for his signature.

Q And that was the one prepared perti-

nent to this case?

A Yes.

Q Okay.

Q Okay, now also explain what Building

168 is for the record.

a Our Building 168 is headquarters for

Law Enforcement, It's our security headquar-

ters.

Q That's at Wright-Patterson Air Force

Base?

A Yes, that's Wright-Patterson Air

Force Base.

Q Okay, and when did you turn those

items over to custom?

A Well, we turned them over to the

Desk Sgt., I am not sure of the hour, but it

was on the same day. It was immediately fol-

lowing the search, we went to Building 168 to

write the report.

Q 2lst of June?

I

|

[

J

A- 46

A Yes, 21st of June.

Q One moment please. Okay, did you

create a report of the incident?

A Yes.

Q Okay, now to show you what has al-

ready been accepted into evidence in the file

tab 8, and ask if you can identify that.

A Alright, this is a DD. 1569, the

incident/complaint report. What this is we

write this out on cases, it is a detailed re-

pert of what happened. Its like a storv, and

what we do, Write a third person so, it states

everybody's name in it and not written from my

point of view, but I myself wrote this, and my

hand written copy is not in here, someone else

typed it.

Q Okay, do you customarily prepare

those reports in cases like this?

A Yes, we always do.

Q Okay, anything at all about the

search, or the procedure involved was out of

the ordinary in your experience?

A No.

Q Pass the witness sir.

Victor Russell

Ms. Printers, do you have any questions

for this witness? You may question.

A-48

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHICAGO REGIONAL OFFICE

IN THE MATTER OF:

Cherles W. Smith

Vv.

Dept. of the Air Force

Mr. Robert Scott is the Proposal Removal

Official.

Ms. Printer asked Mr. Robert Scott a question

about the Incident/Complaint Report and it

went like this:

Q Will you look at that? What would

the full report be on?

A Second and third page.

Q Sir, would you like at the second

page, will you tell me what form this is?

A LD1569.

Q Say that again.

A DD1569.

Q Where do you see that at Sir?

A

Bottom of first page.

A- 49

Q I ask you again. Will you take a

look at the top of this report and tell me or

will you read the whole thing please.

Mr. Buenning:

Sir, I'm going to object. It says what

it says, and you can read for yourself as to

what it says. I can't see the purpose of

reading what it says.

Mr. Russell:

I can't see the purpose of reading what

it says.

Ms. Printers:

It's important to my case; they are say-

ing that Charles was in possession and I am

saying that these two forms are different, and

I am saying that the Government ah... .clear-

ly spelled out how these forms suppose to be

filled cut, to whom they are suppose to be

filled out by and I am saying that this is

not a part of the Incident/Complaint Report.

Mr .Buenning:

Sir, we have already had the testimony

on that form, the person whom created the

report. I don't see how he could testify

on that.

Mr. Russell:

Now this witness has testified that he

relied on the police report of the incident

report. In order to ah. . . develop his

charge he brought, and ah. . .what element

here again, there is an inconsistency in

those two. I think that's a matter for

argument or you may ask him where he got

from the police report information about

possession that he have. I will permit that

kind of questioning, but I can't see any rea-

son to read the record of the entire report.

Ms. Printers:

«oo 0 UM

Mr. Russell:

I will permit you to ask where on that

police report he see something that tell him

that the appellant was in possession of mari-

juana and control substance.

A-51

fe) Ok, Mr. Scott, where do you see in

the Incident/Complaint Report that tells you

that Charles was in possession of marijuana:

and valium?

A - « « -{pause) Ah, "where it says"

ah. . .Sgt. Beck ask to search his wall

locker, Sgt. Beck searched his wall-locker,

searched the locker, and got ample color

bottle that contain with the name of Mary

Printers. "I am net an authority on assess-

ment" (of a police report), therefore, I have

to rely on the police report.

Mr. Russell:

But you inferred, that then, it was your

imprint that he was in possession of drugs

in both substance - is that your interpreta-

tion of what that says.

A No, the full report, it showed

what he had in the locker.

Mr. Russell:

So you believe that shows, you refer from

that, shows that he was in possesion of it...

A-52

A No answer.

Mr. Russell:

You didn't particular pick out any

specific language in that report,

you relied on the entire report to formulate

your opinion that it showed possession .... is

that what you are saying?

A Yes.

Q You didn't take the sentence, or the

two sentences and put in the proposal?

A No. .

Q Is that what you was trying to get

at?

Ms. Printers:

A Yes.

Mr. Russell:

Ok.

Ms. Printers:

I just like to ah. . . just establish

this for a point down the road that this is

the report that Mr. Scott relied on.

Mr. Russell:

Yes, he already testify that he relied

on the police report incident report shown

as DD1569.

Ms. Printers:

Ok, In ah. . .view of your testimony of

the police report, Mr. Scott, will you tell

everyone if the charge for ah...possession of

marijuana and valium was a correct charge,

and was the removal in order based on the re-

port from the pclice Incident/Complaint

Report.

Mr. Scott:

A I believe it was correct.

Q Charge and removal, and that was

done for the efficiency promote the effici-

ency of service ah...can you tell me ah..in

what way will this promote the efficiency of

service, Sir?

A Well, ah...his performance, ah...

tor one thing, too, there are penalty for

and....,we are in business of defense supply

A-54

ing for defense, and if something is not

done, aur services is not sufficient, and

I'm not going to let that happen...that's why

I made the proposal so this would not affect

eseee if I didn't propose anything in this,

it would happen, it may happen.

Q Mr. Scott, the ah...to improve the

efficiency of service you testified a short

while back that Charies was not under influ-

ence to your knowledge, and he did work that

day.

A That day, but he's not being charged

with under influence, as far as I'm concern.

Q But the efficiency of service, to

promote the efficiency of service you are

saying that he wasn't doing his job.

+ I'm saying that this type of action

SUCH Misi scee , having something illegal, on

the having drugs inside the building making

it possible, other times being under influ-

ence, and making it possible being under in-

fluence and because of the past, then it was

A-55

sort for the efficiency of service.

Mr. Russell:

May I ask a question, follow up from

that, I think what Ms. Printers is really

getting at, if the appellant could still do

his job, how was the efficiency of service

promoted removal for this kind of offense.

Ms. Printers:

Yes Sir.

Mr. Scotts

I believe of the, tab 971 would give

credits tofacts that doing something here

would give would promote the efficiency of

service which I provide.

Mr. Russeli:

But you are looking for reasons why you

think that, not just conclusion, to promote

the efficiency of service. He could still

do his job, and you not going to ask him for

his job, being under influence, at least be-

lieve he was, where he was charged here with

possession, and he was stiil able to work that

A-56

day. The question is, how is service more

efficient, if he was able to work and the

charges was concerning possession, and not

anything directly that interfered with his

work on his job.

Mr. Scott:

Well, you are, what I get from the

guestions you referring to efficiency of the

service for one day, and the proposal of this

action refer to the services from now on or

from that day on.

Ms Printers:

How could you draw a conclusion from

now on, if he was able to stay in his cap-

acity and ....produce, and have tha ability,

to produce the amount of work that was as-

signed to him.

Mr. Scott:

You are...have come to the conclusion

that he was able to perform his duties that

was assigned to him.

Mr. Russell:

But I think, she entitled to make that

conclusion because he hasn't been charged

with efficiency, so there's no charge, so

the appellant is entitle to presumption that

he performs his duties, there is no charges

he didn't perform.

A-58

DISCREPANCY IN TESTIMONIES

BETWEEN MR. ROBERT SCOTT

AND MR. JOSEPH REUWER

Mr. Russell: The presiding official stated

I don't understand what you mean when you

say performed his duties. What is the

purpose in the testimony‘what are you

seeking?

Mr. Buenning: I am looking to talk about

efficiency of service.

Mr. Russell: The charges here don't read-

ily pertain to work performance matteres,

it is reaily outside the actual work per-

formance.

Mr. Buenning: The only reason I bought it up

is due to D. V. work history.

Mr. Russell: I will permit you to ask a

work history question; whether or not

this employee performs satisfactorily,

but I won't permit that kind of quest-

ioning.

A-59

Mrs. Printers: Mr. Scott, what was Mr. Smith's

rating when he left one or two weeks be-

fore he left?

Mr. Scott: Fully successful.

Mrs. Printers: Major Reuwer, are you aware of

the rating Mr. Smith had one or two weeks

before his departure?

Major Reuwer: Yes, I asked to see it.

Mrs. Printers: And what was that rating, Sir?

Major Reuwer: It was slightly below the

grading scale .. . @8 I secail.

Mrs. Printers: What kind of category would

that fall into?

Major Reuwer: It would fall into the category

of acceptable.

Mrs. Printers: Acceptable?

Major Reuwer: Acceptable.

Mr. Russell: You will be surprised to learn

that Mr. Scott testified that the appellant

was rated as being fully successful.

Major Reuwer: We changed the rating form

lately to successful. I'm not sure which

Mr.

A-60

one would be appropriate, and the phase

(Major Reuwer asked to see the rating

form).

Russell: Are you stating that the keep-

ing good order and discipline in both the

efficiency of the service independently of

whether or not the individual has perform-

ance?

Major Reuwer: The individual has performance.

Mr.

—

There is no question in my mind, like one

individual was permitted to go unpunished

with possession and others begin to quest-

ion whether or not management is about en-

forcing the law. I frequently get quest-

ions from young Airmen about that. Approx=-

imately half of my work force is military

and half civilian. The rules are approx-

imately the same on both sides. I find

myself unable to make very much exceptions.

Buenning: Ask Mr. Scott now did you ever

have the occasion to discuss this particu-

lar incident with Major Reuwer?

A-61

Mr. Scott: No

Mr. Buenning: Asked the same question to

Major Reuwer. Okay, did you have the occas-

ion to discuss the case with Mr. Scott?

Major Reuwer: Yes, on several occasions (one

said .no, and the other said yes).

Mr. Buenning: Okay, and what was the sub-

stance of the discussion?

Major Reuwer: Well, I certainly wouldn't

make a decision without the consultant of

first of all the supervisor required about

Mr. Smith.

Mrs. Printers: Mr. Scott were you aware that

the security police sent him back to work?

Mr. Scott: Yes . . .sent him back to

work on which day?

Mrs. Printers: On June 21, 1984..

Mr. Scott: Yes, I was.

Mrs. Printers: Okay, then if he was sent back

to work, what kind of condition would he

have been in if he was in such bad condi-

tion would they have referred him back to

ee a a a

A-62

work?

Mr. Buenning: I'm going to -bject Sir;

again he is not charged with being under

the influence, its possession, not under

influence.

Mrs. PrinterS: Mr. Russell, would it be okay

to ask him was he under the influence of

any drugs on June 21, 1984.

Mr. Scott: I didn't charge him with any,

not tomy knowledge.