RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER:  BC-2004-00252
			
			COUNSEL:
			HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be re-characterized as honorable and he be permitted to retire with full pension benefits.

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APPLICANT CONTENDS THAT:

He was discharge by an Air Force board after 19.5 years of TAFMS without a pension due to an off-duty felony conviction.  During the Board of Inquiry (BOI) process, no advisement by any Air Force entity, agency or person was ever given to him or the convening discharge board regarding “length of service consideration.”  Such advisement, if it had been introduced and considered, may have resulted in a different outcome of the board’s findings and/or the characterization of his discharge type.

Applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic on 7 July 1981 and served for 9 years, 7 months and 6 days before he was commissioned as a 2nd lieutenant on 13 February 1991.  The applicant was discharged from the Air Force on       11 December 2000 under the provisions of AFI 36-3207, Separating Commissioned Officers (Board Hearing - Misconduct) with an general (under honorable conditions) discharge.  He had served 19 years, 5 months and 5 days total military service.

On 3 March 2000, the applicant was notified by his commander that he was initiating action in accordance with AFI 36-3206, Administrative Discharge Procedures for Commissioned Officers, Chapter 3, para 3.6.4 (serious or recurring misconduct punishable by military or civilian authorities) for engaging in serious misconduct, in that a Colorado court convicted him of enticement of a minor, a Class 4 Felony.   

The applicant acknowledged receipt of the notification of action initiated under AFI 36-3206 on 15 May 2000.  A Board of Inquiry (BOI) was held on 25 July 2000 and findings and recommendation were to separate the applicant with a general (under honorable conditions) discharge.  

On 6 September 2000, the discharge authority reviewed the record of proceedings from the BOI and agreed with the recommendation of the BOI that applicant be separated from the Air Force with a general (under honorable conditions) discharge.  

On 18 October 2000, HQ USAF/JAG reviewed the BOI record and found it legally sufficient to support the recommendation that the applicant be separated from the Air Force with a general (under honorable conditions) discharge

On 29 November 2000, the Secretary of the Air Force directed the applicant be separated from the United States Air Force with a general (under honorable conditions) discharge.  

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  Based on the documentation on file in the master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The discharge was within the discretion of the discharge authority.

The applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing.  He provided no facts warranting an upgrade of his discharge.  

AFPC/DPPRS complete evaluation is at Exhibit C. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and stated he respectfully disagreed with the recommendation of AFPC/DPPRS.  He believes his discharge or the discharge process was not consistent with procedural and substantive requirements of the discharge regulation and for the below listed reasons and facts.  He is a victim of error and injustice.

First, the attached discharge worksheet used by the 25 July 2000 discharge board in his opinion is flawed.  This worksheet was used by three convening board of colonels, which more or less forces them to reach a discharge decision.  No positive statements or any lengthy service consideration mentions are on this form.  When he examined the worksheet at the time of the board, he was dismayed and found that it had no other possible outcome other than for the convening members to recommend discharge.  The worksheet acts like a mousetrap with no intent to uphold the purpose of any governing discharge regulation.  Consideration for what actually happened, circumstances surrounding the event, one’s service record, and lengthy service consideration should all be mentionable parts in this worksheet.  Based on these facts and the nature of this form, the process is flawed and unjust.  

Secondly, the Staff Judge Advocate advised him via AF Council on several occasions that a General Court Martial would be pursued if he did not plead guilty to the Colorado charge of “Enticement of a Child.”  The JA told us he would also seek six years in prison even though the Pueblo Colorado district attorney sought no jail time.  Additionally, the District Attorney in Colorado seemed unwilling to try this case and told him that if he did not plead guilty to the charge, he would turn this case over to the military for them to decide, thus opening the door for a court martial and a potential six years in prison.  He emphasize that this case was based on a police sting operation and that there was no victim.  During the time leading up to the board, he feared the ultimate punishment of prison and therefore plead guilty of the charge.  He also pointed out that the person portraying the 14 year old girl was in fact an adult female working as an under cover police officer.  Voice mails were also exchanged, and although wrong, curiosity to meet this person got the better of him.  It is possible that here would have been no conviction if JA had not made these unnecessary threats.  These acts by JA before any trial or board had convened were an injustice to him.  

On 11 April 2004, his law firm Feldesman, tucker, LLP requested through the Freedom of Information Act (FOIA) documents signed or reviewed by the Secretary of the Air Force leading up the final discharge decision.  We received nothing along those lines.  He does not believe that the Secretary of the Air Force was actually ever consulted nor were any facts presented to him.  It appears that no staff summary sheet or letter was ever signed by the Secretary of the Air Force indicating his required review.  He believes to be a serious decision step in the discharge process that was missed.

He is troubled with recent developments in the Middle East regarding prisoner treatment and human rights abuses.  Every one should be responsible for their actions and this includes airmen, soldiers, commanders, government agency officials, and ever Secretaries.  Accountability is where the rubber meets the road and it is time to perhaps talk about some other things that happened to him during his Air Force career.  If needed, he has detailed information for the AFBCMR that he could share with you upon request.  This information includes activities of sexual relations and intercourse between him and the wife of an active-duty Air Force Lieutenant General.  This happened at the time of his technical training during his first four months of service.  Several years later, he was also sexually mistreated by a male Air Force master sergeant in a supervisory position, which until now had also not been reported.  He bring this information to light now, because Air Force counsel Capt R__ at the time advised him not to talk about this at the discharge board.  However, he believes this information does have relevance to his case.  It was past behavior that he was being judged for at the board and these events were corollary to his behavior and had not been considered by any board.  The Board should also know that he chose not to address these problems at that time of their occurrence.  These were things a young enlisted individual on active duty should not have come forward with.   

He hereby request the Board to review these facts and circumstances of injustice and that his general (under honorable conditions) discharge be upgraded to honorable.  He is asking to be afforded the opportunity to finish out his last 6 months to reach 20 years of total active federal military service (TAFMS).  If service is no longer possible, he would like the AFBCMR to query the Secretary of the Air Force for a waiver of those last 6 months of service and that he or she permit him to retire with full pension benefit.  Aside from this one incident, he served honorably for nearly twenty years.  As a minimum, he hopes the AFBCMR could take the necessary actions to restore the financial aspects of his pension, which he feels is still owed him. 

Applicant’s complete response is at Exhibit E

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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 not timely filed; however, it is in the interest of justice to excuse that failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We thoroughly reviewed the applicant’s entire record and the circumstances surrounding his discharge.  In this respect, we note that, due to the applicant’s misconduct, a Board of Inquiry convened to investigate the pertinent facts and circumstances to determine whether the applicant should be discharged from all appointments held in the Air Force.  After considering the evidence and testimony, the board determined that the applicant’s appointment in the Regular Air Force should be terminated and that he be discharged with a general (under honorable conditions) discharge for engaging in serious misconduct.  In cases such of this nature, we are not inclined to disturb the judgment of commanding officers absent a strong showing of abuse of discretionary authority.  We believe the Board of Inquiry members were in the best position to weigh the evidence in the case and judge the applicant’s credibility, as well as that of the statements made in this case, prior to recommending the discharge action.  Other than the applicant’s assertion, no evidence has been presented to show an abuse of authority by his former wing commander or that of the members of the Board of Inquiry.  With regards to the applicant’s allegation that the Board of Inquiry was anything but fair and impartial due to the composition of the board members, we note that he was represented by counsel and, as the Report of Proceedings reveals, the applicant was satisfied with the composition of the board and challenged no member.  In regards to length of service consideration, the Board notes that the applicant presented 120 exhibits, 11 character statements, one personal testimony that the BOI considered, however, the BOI recommended that the applicant not be retained on active duty.  In view of the totality of the circumstances, we found no evidence that pertinent Air Force regulations were violated or that the applicant was not afforded all the rights to which entitled during the Board of Inquiry proceedings and ultimate discharge.  In view of the above and in the absence of evidence that the applicant’s substantial rights were violated, or that his superiors abused their discretionary authority, we find no compelling basis upon which to favorably consider this appeal.

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 AFBCMR Docket Number BC-2003-1739 in Executive Session on 27 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 15 Mar 04
    Exhibit D.  Letter, SAF/MRBR, dated 19 Mar 04
    Exhibit E.  Letter, Applicant’s response, 11 May 04

                                   Panel Chair