RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04844

	COUNSEL:

	HEARING: NOT INDICATED

APPLICANT REQUESTS THAT:

His Under Other Than Honorable Conditions (UOTHC) discharge be reversed and he be reinstated onto active duty.

APPLICANT CONTENDS THAT:

He was unjustly discharged while undergoing an appeal for his civilian conviction.  His appeal was approved and his civilian convictions were reversed.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a former Air Force master sergeant.

On 12 Jan 15, the applicant was convicted by a civilian court for strangulation, rape and forcible sodomy.

On 11 Feb 15, the applicant’s commander notified the applicant he was being recommended for discharge under the provisions of AFI 36-3208, Administrative Separation of Airman, for a civilian conviction, commission of a serious offense and sexual assault. 

On 26 Mar 15, an administrative discharge board was convened and recommended discharge with a UOTHC discharge.

On 12 May 15, a legal review was conducted and recommended the applicant’s case be forwarded to Secretary of the Air Force (SECAF) with a recommendation for discharge with an UOTHC discharge and lengthy service consideration.

On 13 May 15, the Wing Commander recommended AFDW/CC accept the recommendation of the discharge board.

On 30 Jun 15, AFDW/CC directed the applicant be separated with a UOTHC discharge.

On 9 Oct 15, the SECAF approved execution of discharge.

On 2 Nov 15, the applicant was furnished an UOTHC discharge.  He was credited with 18 years, 9 months and 15 days of active service.

On 26 Oct 16, the Court of Appeals of Virginia reversed the applicant’s civilian conviction and remanded the case for a new trial.

On 24 Jul17, the applicant plead guilty to aggravated sexual battery in the Circuit Court of Fairfax County, in the Commonwealth of Virginia.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION:

AFLOA/JAJM defers to AFPC regarding administrative discharges or the legality of an administrative discharge action.  

The Court of Appeals of Virginia reversed the applicant’s convictions and remanded the case for re-trial at the discretion of the Commonwealth of Virginia. The Court of Appeals concluded that the judge at applicant’s trial erroneously excluded evidence that may have impeached the victim’s credibility, and that the exclusion of the evidence may have impacted the verdict. This decision vacated the applicant’s conviction but allows the government to re-do the case and correct the error.

The discharge board found the applicant committed two sexual acts upon the victim without her consent.  In fact, his discharge notification contained two separate bases for his discharge: 1) conviction in a civilian court and 2) commission of physical and sexual assaults against the victim.  The discharge board’s recommendation for discharge was not solely based on the findings of the civil court.

The complete advisory is at Exhibit C.

AFPC/JA recommends denying the application. 

Under the provisions of AFI 36-3208, an airman is subject to discharge for misconduct based on a conviction by civilian authorities.  The AFI further notes a service member can be discharged in absentia and the discharge can be executed if the service member is being held in civilian confinement.

While the applicant’s original civilian conviction, which served as the basis for his involuntary discharge, was overturned, his subsequent guilty plea and civilian conviction meets the requirements of the governing instruction to serve as basis for an involuntary discharge.

The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluations to the applicant on 27 Jun 18 for comment (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error and injustice.  The Board concurs with the rationale and recommendations of AFPC/JA and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2016-04844 in Executive Session on 9 Aug 18:

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 29 Nov 16
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 26 Oct 17.
Exhibit D:	Advisory opinion, AFPC/JA, w/atchs, dated 5 Apr 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 27 Jun 18.

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