RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01216
				INDEX CODE:  115.02
	XXXXXXXXXXXXXXXXXX	COUNSEL:  XXXXX

	XXX-XX-XXXX	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

He be reinstated to active duty in the grade of technical sergeant; he be 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.  

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APPLICANT CONTENDS THAT:

His military defense counsel failed him, in that the counsel failed to thoroughly investigate his case, ignored his request to be tried by court-martial, pressured him into accepting a Chapter 4 discharge, and provided incorrect advice regarding post service impact of an Under Other Than Honorable Conditions (UOTHC) discharge.  

In support of his appeal, the applicant includes documents associated with the events and issues raised in his application.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 16 March 1982 the applicant enlisted in the Regular Air Force at the age of 19 in the grade of airman basic (E-1) for a period of four years.  He was trained as a Security Forces Craftsman.  The applicant was progressively promoted to the grade of technical sergeant (E-6) effective and with a date of rank of 1 December 1997.  He received 20 performance evaluations between the period of 16 March 1982 and 30 April 1998, all rated with the highest overall rating and promotion recommendation available.

On 22 September 2000, an investigation was initiated based on allegations that the applicant committed a sexual assault.  On 21 November 2000, his immediate commander notified the applicant of the charges against him and of the names of the accusers.  On 22 November 2000, charges against the applicant were referred for trial by court-martial.  The applicant was charged with three specifications of maltreatment of a person subject to his orders, one specification of sodomy, five specifications of assault, and one specification of indecent assault.  The charges alleged a number of instances of sexual harassment, of varying degrees of severity, involving four different victims.  On 7 December 2000, the applicant submitted a request through his Area Defense Counsel to his chain of command, requesting he be discharged in accordance with AFI 36-3208, Chapter 4, in lieu of trial by court-martial.  On 14 December 2000, his commander forwarded the applicant’s request for approval.  On 15 December 2000 and 18 December 2000, the wing staff judge advocate and wing commander concurred with the recommendation, respectively.  On 19 December 2000, the discharge authority’s staff judge advocate recommended approval of the applicant’s request for discharge in lieu of trial by court-martial and that the applicant be discharged with a UOTHC characterization of service.  On 22 December 2000, the discharge authority approved the applicant’s UOTHC discharge for misconduct without probation or rehabilitation.  On 5 January 2001, the applicant was discharged with a UOTHC characterization of service, a reenlistment code of 2B (discharged under general or other-than honorable conditions), and a narrative reason for separation of “Triable by Court-Martial.”  He served 18 years, 9 months and 20 days on active duty.  

On 22 November 2002, the Air Force Discharge Review Board (AFDRB) considered and approved the applicant’s request to change his characterization of discharge from UOTHC to honorable, his reenlistment code to 3K (reserved for use by HQ AFPC or AFBCMR when no other reenlistment eligibility code applies), and his reason for discharge to “Secretarial Authority.”  Four board members voted to grant the applicant’s request and one board member voted to change the applicant’s characterization of discharge to “General.”  

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AIR FORCE EVALUATION:

AFPC/JA recommends denial of the applicant’s request.  JA states that the applicant’s basic premise is that he suffered an injustice because his ill-prepared counsel persuaded him over his strenuous objection, to submit a Chapter 4 request when he would have fared better had he opted for trial by court-martial.  It is JA’s opinion that the case file does not support the applicant’s contentions.  JA states that in mid-2001, the applicant filed a complaint against his counsel to the Office of the Judge Advocate General (JAG) alleging ineffective assistance of counsel.  On 7 February 2002, after a full investigation, the JAG determined the applicant’s complaint was unsubstantiated.  

JA states that the applicant personally signed the letter requesting the Chapter 4 discharge and acknowledged the adverse nature and possible consequences of a UOTHC discharge.  The discharge authority accepted the applicant’s request in good faith.  By tendering the request, the applicant explicitly recognized that the Chapter 4 discharge would be in lieu of trial by court-martial ‑‑ the procedure that would otherwise have been used to resolve any factual disputes.  

It is JA’s opinion that the applicant has failed to prove by a preponderance of the evidence that his request for discharge was anything other than knowing and voluntary.  It is also JA’s opinion that the applicant should not be allowed to use his discharge request to halt the court-martial process established by law as the proper means to adjudicate the criminal allegations against him and now, under the guise of an allegation of error or injustice, litigate those allegations contrary to the Chapter 4 request accepted in good faith by the Air Force.  The fact that the applicant may now regret his decision does not constitute an error or injustice that would justify allowing him to revisit that decision three years after the request was tendered.  The JA evaluation, with attachments, is at Exhibit C.

AFPC/DPPRS recommends the application be denied.  DPPRS states that based on the documentation in the file, the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  Additionally, the discharge was within the discretion of the discharge authority.  DPPRS states the applicant’s records were corrected after the AFDRB approved his request to change his discharge characterization to honorable, his reenlistment code to 3K and his reason for discharge to “Secretarial Authority.”  DPPRS states that if the Board decides to grant the applicant’s request, his DD Form 214, Certificate of Release or Discharge from Active Duty, will be voided as if the separation never happened.  The AFPC/DPPRS evaluation is at Exhibit D.

AFPC/DPPPWB concurs with DPPRS’s evaluation that the discharge was valid; however, if the Board grants the applicant’s request for reinstatement to active duty, his initial grade would be technical sergeant with a date of rank of 1 December 1997.  The DPPPWB evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By fax dated 31 July 2003, the applicant’s civilian counsel requested that his client’s application be temporarily withdrawn.  On 5 August 2003, the applicant was advised that his case was administratively closed at the request of his counsel.  The case was reopened via counsel’s letter of 11 March 2004.

Counsel asserts that it is not surprising that JA would vehemently oppose the applicant’s motion, nor is it surprising that the applicant’s area defense counsel claims he did everything just right.  If the Board wishes to obtain the truth, then a personal appearance hearing is required where the applicant’s area defense counsel is present to swear under oath what he did or didn’t do.  The applicant and the applicant’s spouse did confirm under oath the ineffectiveness of the area defense counsel.  At a bare minimum, JA should have obtained an affidavit from the applicant’s area defense counsel.  His counsel’s only strategy was to get the applicant’s case off his desk.  The applicant welcomes and encourages the opportunity to have a personal appearance hearing with his area defense counsel present.  There is ample evidence to grant relief as previously demonstrated.  Counsel’s submission is at Exhibit G.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice.  The applicant seeks reinstatement in the Air Force in the rank of technical sergeant, back pay and allowances, credit for time in grade, and expungement of his separation from his records.  In his submission to this Board, the applicant asserts his military counsel failed him, in that the counsel ignored his request to be tried by court-martial and pressured him into accepting a Chapter 4 discharge.  The applicant also appears to believe he has been exonerated based on the findings and decision of the AFDRB.  After thoroughly reviewing the evidence provided, we do not find it sufficient to warrant approval of the relief the applicant seeks from this Board.  We have reviewed the decision document of the AFDRB and, contrary to the applicant’s assertions, it appears the AFDRB’s findings were based not on error, but rather on possible injustice.  Specifically, the AFDRB concluded that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the sound discretion of the discharge authority.  However, the AFDRB noted the advice given to the applicant by his ADC was possibly incorrect, and that there were no third party witnesses confirming the alleged incidents. In view of the foregoing, the applicant’s testimony, and the overall quality of his service, the AFDRB concluded there was sufficient mitigation and extenuation to upgrade his discharge to honorable and to change the reason for his separation and his RE code.  In our opinion, based on the totality of the evidence provided, the corrections to the record approved by the AFDRB were proper and fitting, and further relief would not be appropriate.  In cases of this nature, we are not inclined to reverse the decisions of commanding officers, who are closer to events, in the absence of error or abuse of discretionary authority.  In this case, the applicant’s commanders determined that the evidence against him was credible.  We believe it should be noted that the applicant was a mature senior noncommissioned officer.  Other than his own assertions, he has provided no persuasive evidence showing he was miscounseled, that his decision to request separation in lieu of trial was coerced in any way, or that his commanders abused their discretionary authority when they accepted his offer and approved his discharge.  In the absence of such evidence, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error.  In view of the foregoing, we conclude that no basis exists to recommend granting the relief sought in this application.  

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 11 May 2004, under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number BC-2003-01216 was considered:

	Exhibit A.  DD Form 149, dated 30 Mar 03.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/JA, dated 11 Jun 03.
	Exhibit D.  Letter, AFPC/DPPRS, dated 6 May 03.
	Exhibit E.  Letter, AFPC/DPPPWB, dated 13 May 03.
	Exhibit F.  Letter, SAF/MRBR, dated 8 Apr 04.
	Exhibit G.  Applicant’s Rebuttal, 11 Mar 04.