RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-05133 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His dishonorable discharge (DD) be upgraded to a general (under honorable conditions) discharge so that he can regain his retirement entitlements. ________________________________________________________________ APPLICANT CONTENDS THAT: He served 20 years of honorable service and his misconduct was based on an isolated incident of eight seconds in duration. His defense counsel coerced him to appear before a judge alone and accept a plea bargain in order to save the government time and money. He was involuntarily extended beyond his retirement date, past his high year of tenure and should have been promoted to master sergeant so that the government could have legally retained him for trial. Furthermore, the specific time and date of the incident for which he was convicted could not be determined, so the government extended the time frame of the charges alleged. Although, his ex-wife dropped the charges against him, the government pursued the case in an effort to make an example of him. He is "serving a life sentence dealing with society and all it carries for this type of charge." In support of his request, the applicant provides an expanded statement. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 8 Nov 78, the applicant contracted his initial enlistment in the Regular Air Force. He was progressively promoted to the grade of technical sergeant (TSgt). He served as a munitions systems craftsman. On 1 May 99, the applicant was convicted by general court- martial for committing sodomy with a child under the age of 12 and committing indecent acts upon the body of a female under the age of 16. He was sentenced to a DD, 9 years confinement, forfeiture of all pay and allowances, and a reduction in rank to airman basic (AB). On 2 May 01, the applicant submitted an application for retirement. On 13 Nov 02, the Secretary of the Air Force (SAF) disapproved the applicant’s request for retirement. The applicant was furnished a DD on 6 Jan 03. A request for post-service information was forwarded to the applicant on 28 Aug 12 (Exhibit F). As of this date, no response has been received by this office. The remaining relevant facts pertaining to this application are contained in the letters prepared by the appropriate offices of the Air Force, which is attached at Exhibit C and D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice in the processing of the applicant’s court-martial. The applicant pled guilty at trial to the charges and specifications. In cases which include guilty pleas, the military judge ensures the accused understands the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea is accepted by the court. The military judge explains the elements and definitions of the offenses to which the accused plead guilty; and has the accused explain in his own words why he believes he is guilty. Upon the court's acceptance of the guilty plea, it will receive evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The sentencing authority then takes all of these factors into consideration when imposing the sentence. The applicant asserted that his DD was based on an isolated incident that lasted for no more than eight seconds. The applicant, in fact, pled guilty to sodomizing his pre-teenage, step-daughter by forcing her to perform fellatio on him for approximately eight seconds, having her fondle his genitalia, and kissing his penis through his clothes. The time frame properly charged by the government was between, on or about 1 Jan 95 and on or about 30 Sep 97, presumably supported both by the government's evidence and the applicant's own recollection at trial. Furthermore, when pending criminal charges, the government has the authority to hold over an accused for trial by court-martial, without regard to high year tenure limitations. Additionally, a court-martial prosecution is not bound by the common misconception that an alleged victim can simply "drop the charges." Under the UCMJ, the accuser is normally the commander, and the government retains sole discretion with regard to pursuing or dropping charges of an alleged crime. Furthermore, granting clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veteran’s Benefits Program was to express thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy actions and suffering financial hardship. All rights of a veteran under the laws administered by the Secretary of the Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSOR recommends denial, noting, based on the documentation on file in the master personnel records and the JAJM evaluation, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. DPSOR found no error or injustice in the applicant's discharge from the Air Force. The applicant submitted a retirement application, and the SAF denied the applicant’s request. In order for the service member to retire or receive retirement benefits he must have received an honorable character of service. A complete copy of the AFPC/DPSOR evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 20 Jun 12 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. ________________________________________________________________ FINDINGS AND CONCLUSIONS OF THE BOARD: We have carefully reviewed the applicant’s submission and the evidence of record and do not find a sufficient basis to excuse the untimely filing of this application. The applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records. The applicant has not shown a plausible reason for the delay in filing, and we are not persuaded the record raises issues of error or injustice which require resolution on the merits. Thus, we cannot conclude it would not be in the interest of justice to excuse the applicant’s failure to file in a timely manner. ________________________________________________________________ DECISION OF THE BOARD: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-05133 in Executive Session on 10 Oct 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Dec 12, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 23 Apr 12. Exhibit D. Letter, AFPC/DPSOR, dated 4 Jun 12. Exhibit E. Letter, SAF/MRBR, dated 20 Jun 12. Exhibit F. Letter, AFBCMR, dated 28 Aug 12, w/atch.