ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2015-04525-2

XXXXX XXXXX	COUNSEL:  XXXXX XXXXX

	HEARING REQUESTED:  NO

APPLICANT’S REQUEST

The Board reconsider his request for a length of service retirement, to include restoration of all pay, allowances, entitlements, rights, and privileges.

RESUME OF THE CASE

The applicant is a former honorably discharged Air Force master staff sergeant (E-7), who was credited with 23 years, 9 months and 4 days of active service.

On 27 September 2016, 28 November 2017 and 19 December 2018, the Board considered and denied the applicant’s request for a length of service retirement with all pay allowances, entitlements, rights and privileges affected by the involuntary discharge and denial of his request for retirement, finding that the applicant had provided insufficient evidence of an error or injustice to justify relief.  The Board determined there was insufficient evidence showing the applicant’s discharge was an error or injustice.  The applicant is not entitled to retirement, and is not eligible because a member must be in the military, must have honorable service and apply for retirement. The applicant is not entitled to a retirement even if his discharge characterization was changed to honorable.  Retirement eligibility requires an applicant to be in the military, have honorable service, and apply for retirement.  The Board further noted they were unable to determine if the evidence presented to the administrative discharge board included the evidence dismissed/expunged by the civilian court.  However, should the applicant provide expansive evidence for the basis of the dismissal and subsequent expungement of his case by the civilian court, the Board would be willing to reconsider his petition.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings, with Exhibits A-H, at Exhibit I.

On 26 February 2020, the applicant through counsel requested reconsideration of his request for a length of service retirement with restoration of all pay, allowances, entitlements, rights, and privileges.  Counsel states, the 28 December 2018 decision by the Board concluded that “…it was unable to determine if the evidence presented to the administrative discharge board included the evidence dismissed/expunged by the civilian court.”  The Board further noted that should the applicant provide expansive evidence for the basis of the dismissal and subsequent expungement of his case by the civilian court, it would be willing to reconsider his petition.  This request for reconsideration will address the Board’s specific evidentiary question.  In addition, counsel asks the Board to consider granting retirement based on equity and clemency.

Counsel states the applicant’s position remains that had the expert from XXXXX XXXXX. testified before the administrative separation board, as he did before the State Court, the separation board members would have certainly reached the same conclusion as the State Court to dismiss the charges.  Furthermore, the affidavit from the expert of XXXXX XXXXX. firmly contradicts the testimony by the sergeant at the administrative board.  In his opinion, no information could be recovered from the images obtained from the unallocated space to determine when the images were placed on the hard drive; nor was there any evidence showing folders that were created on the active drive or the unallocated space, which contained images of child pornography.

Counsel further states given the totality of the circumstance of this case, the applicant has demonstrated an injustice with the administrative separation proceedings taken against him.  The separation and denial of his retirement were unfair and not warranted.  The AFDRB found that the applicant’s overall quality of service was more accurately reflected by an honorable characterization.  The applicant’s military service throughout his extensive career was in all respects in accordance with the expectations of the Air Force and should entitle him to retirement with full benefits.  

As new evidence, the applicant’s counsel provides a memorandum, and résumé from XXXXX XXXXX.

The applicant’s complete submission is at Exhibit J.

APPLICABLE AUTHORITY

On 25 July 2018, the Under Secretary of Defense issued supplemental guidance (Wilke Memo) to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board 

The entire guidance can be found at Exhibit K.  

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board finds a preponderance of the evidence does not substantiate the applicant’s contentions.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we do not find the evidence presented sufficient to override the previous decision of the Board.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2015-04525-2 in Executive Session on 27 October 2020:

XXXXX XXXXX, Panel Chair
XXXXX XXXXX, Panel Member
XXXXX XXXXX, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit I:	Record of Proceedings, w/ Exhibits A-H, dated 26 Dec 18.
Exhibit J:	Application, DD Form 149, w/atchs, dated 6 Nov 19.
Exhibit K:	Memorandum, OUSD (P&R), w/atchs, dated 25 Jul 18

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.