RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04685 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His dishonorable discharge (DD) be upgraded to honorable and he be allowed to retire. ________________________________________________________________ APPLICANT CONTENDS THAT: The Air Force erroneously cancelled his approved retirement when he was placed under investigation prior to his retirement date. His orders were rescinded because of the investigation in violation of AFI 36-3203, Service Retirements. Table 2.1 of the AFI precludes the “submission or processing” of a retirement application if the member is under investigation, but it must not restrict a member from retiring when the member’s retirement processing has already been completed and the member has already been approved for retirement by the Secretary of the Air Force. In support of his request, the applicant provides an expanded statement and copies of his retirement order and amendment; DD Form 2656, Data for Payment of Retired Personnel; DD Form 214, Certificate of Release or Discharge from Active Duty; excerpts from his military personnel records; as well as documents related to his court-martial proceedings. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he enlisted in the Regular Air Force on 17 Jan 86 and was progressively promoted to the grade of technical sergeant (E-6) prior to the matter under review. The remaining relevant facts pertaining to this application are described in the letters prepared by the appropriate offices of the Air Force which are attached at Exhibits C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial, indicating there is no evidence of an error or injustice. The applicant was convicted of violations of Article 120, Rape and Carnal Knowledge, and Article 134, General Article, of the Uniform Code of Military Justice (UCMJ) by a court-martial and sentenced to a DD and confinement for 18 years and 4 months, forfeiture of all pay and allowances, and reduction to the grade of airman basic (E-1). Approved was a DD and confinement for 15 years, forfeiture of all pay and allowances, and reduction in grade to airman basic (E-1). He entered military confinement on 22 Jan 07 and is currently confined at Fort Leavenworth, KS. He appealed his sentence and, on 19 Jul 10, his sentence was affirmed and the DD was ordered executed. On 27 Sep 10, he was furnished a DD. The applicant cites various provisions of AFI 36-3203 to support the argument he should have been allowed to retire. However, absent from his citations is Note 1 of Table 2.1., Conditions that Preclude Submission or Processing of an Application, which states, “If member applied for retirement and it later develops that a restriction applies, MPF immediately notifies HQ AFMPC/DPMRR2 [now AFPC/DPSOR] and the MAJCOM so that retirement processing is suspended.” Table 2.1. lists three rules restricting retirement. Rule 1 states, “If a member is under investigation, the MPF suspends processing the application until the investigation is complete. Then if one or more restrictions in Table 2.2. apply, process accordingly. When no further action is taken after investigation is completed, return to normal application processing.” The applicant’s retirement orders were rescinded on 15 Nov 05 when his commander made notification that he was under investigation. The investigation led to court-martial charges and a court-martial sentence, which are both retirement restrictions in accordance with Table 2.2. According to AFI 36-3203, retirement processing is considered to be from the point the member initially applies for retirement until the actual retirement date. As such, it was within the Air Force’s authority to restrict the applicant from retiring on 1 Feb 06. A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. The applicant does not allege error or injustice in how the court-martial was conducted, but instead contends he would have been allowed to retire instead of facing court-martial in the first place. He says the provisions of AFI 36-3203 were not followed correctly in his case and his retirement order was inappropriately rescinded. While we defer to another agency to discuss this alleged error or injustice, we note that while a military justice investigation is being conducted, an accused is typically placed on administrative hold to prevent separation from the Air Force and to ensure the accused is available and accessible to investigator and trial counsel. From the perspective of a military justice investigation, the administrative hold in the applicant’s case served the purpose for which it was intended. It prevented him from separating from the Air Force before the investigation (and resulting court-martial) could be completed. An examination of the record of trial shows quite clearly the court-martial was conducted appropriately and his rights were observed throughout the process he has not shown a clear error or injustice with respect to the court-martial. The applicant pled guilty at trial to charges and specifications in accordance with a pre- trial agreement. The military judge ensured that he understood the meaning and effect of his plea and the maximum punishment that could be imposed. The Air Force Court of Criminal Appeals affirmed the sentence and the United States Court of Appeals for the Armed Forces denied the applicant’s petition for review. A complete copy of the AFLOA/JAJM evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant refutes virtually every facet of the Air Force evaluations. He contends they contain many erroneous facts and he continues to argue that his retirement order should not have been rescinded as provisions in AFI 36-3203 provide that retirees will not be restricted for reasons listed in Tables 2.1. and 2.2. He indicates the AFPC/DPSOR advisory is incorrect as it relies on provisions of two versions of AFI 36-3203. The first version was in effect in 2003 during the matter under review and supports his contention that his retirement order should not have been rescinded for the reasons above. The second version of the AFI was not effective until 2006, well after his retirement order was rescinded. Therefore, the provisions which AFPC/DPSOR relies upon were not in effect at the time. He also takes issue with the AFLOA/JAJM advisory opinion and provides arguments and documentation intended to demonstrate there were procedural errors in the execution of his court-martial and sentence. In support of his response, the applicant provides a four page expanded statement and copies of excerpts from the Manual for Courts-Martial, documents related to his court-martial, excerpts of AFI 36-3203, various supporting case law, and excerpts from his record of trial. A complete copy of the applicant’s response is at Exhibit F. ________________________________________________________________ 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 injustice regarding the applicant’s contention he should not have been restricted from retiring. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation 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 or injustice. We note the applicant’s argument in rebuttal indicating the AFPC/DPSOR evaluation relies on two different versions of AFI 36-3203, Service Retirements, one of which was not in effect during the matter under review, as the basis for their recommendation to deny relief. Nevertheless, we do not find his assertions or the documentation provided sufficient to convince us that his retirement orders should not have been rescinded. In this respect, we note AFI 36-3203, dated 12 Sep 03, indicates that “Members must not be restricted from retiring by reasons in Table 2.1., Table 2.2., or paragraph 3.2.” While the applicant would like to believe this provision implies that he should have been able to retire despite the presence of applicable restrictions (under investigation), we believe this provision clearly means the presence of such restrictions precludes retirement in a case such as the applicant’s and was correctly applied in his case. As regards to his request for an upgrade to his Dishonorable Discharge, insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency. We have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted. Based on the evidence of record, we cannot conclude that clemency is warranted. We note the applicant’s arguments in response to the AFLOA/JAJM evaluation alleging there were procedural errors in the execution of his court-martial and sentence; however, we find no evidence which indicates the sentence of the military court was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). Therefore, we find no basis upon which to favorably consider this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-04685 in Executive Session on 7 Sep 11, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 3 Dec 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 20 Apr 11. Exhibit D. Letter, AFLOA/JAJM, dated 13 May 11. Exhibit E. Letter, SAF/MRBR, dated 20 May 11. Exhibit F. Letter, Applicant, dated 6 Jun 11, w/atchs.