RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01083
		INDEX CODE:  136.00

		COUNSEL:  

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His record be changed to show he was retired on 23 October 1999 rather than discharged.  

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APPLICANT CONTENDS THAT:

He honored his commitment to the Air Force by serving for 23 years and asks that the Air Force (AF) honor it’s commitment to his service by entitling him and his family to an active duty retirement.  His records show his service as exemplary for 23 of the 24 years he served.  Additionally, he served with distinction for those years setting the highest standards for him, as well as for those who served around him.  He contends he served in hardship countries with his family like Turkey and Greece in the mid 1970’s.  He also endured many temporary duty hardship tours without his family and without being able to contact them or let them know where he was for long periods of time.  Commitment to his career caused him to miss many family events, including his daughter’s wedding.  He always did his best to serve his country honorably and made sure those around him did as well.  He was asked for by name from higher headquarters because he had become known for the outstanding work he had accomplished during his career.

He realizes he committed a crime in 1999 that ended his career.  He served the time required by Kansas for his crimes and will forever be known as a sex offender.  He feels he deserves the punishment he received as he earned it.  He also feels like he deserves his retirement as he worked 24 years of his life towards earning that.  He is branded a sex offender for something he did for two months of his life; he should also be known as an Air Force retiree for something he did for 24 years of his life.

He contends he submitted his request for retirement papers on 15 March 1999 and that his request was not given a proper or legal review.

In support of his appeal, the applicant has provided copies of his DD Form 214, Certificate of Release or Discharge from Active Duty, a United States Senate Privacy Act Release form, a personal statement, and copies of his notification of administrative hold, a statement from his mental health provider, a statement from his squadron commander, his request for separation, a letter from his counsel to his Wing Commander, and a response to counsel’s letter from the Wing Judge Advocates office.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 16 October 1975.  From 7 January 1999 to 31 March 1999 he was the subject of an Air Force Office of Special Investigation (AFOSI) investigation initiated to investigate his possible involvement in a sexual relationship with a minor.  On 2 March 1999, during the AFOSI investigation, the XXth Judicial District Court of Kansas charged him with one count of Indecent Liberties, two counts of Aggravated Indecent Liberties, and one count of Criminal Sodomy.  On 15 October 1999, his commander notified him that he was recommending his involuntary discharge for civilian conviction with an under other than honorable conditions (UOTHC) discharge.  As he had over 20 years of service, his commander informed him that he could apply for retirement.  However, he would have to voluntarily extend to ensure he remained on active duty for the duration of the discharge process.  Even then, his retirement package would have to be approved by the Office of the Secretary of the Air Force (OSAF).  His commander gave him seven days to respond to his recommendation letter.  On 19 October 1999, the applicant signed a document indicating he understood he could either voluntarily extend his current enlistment or separate from the USAF on the last duty day before reaching his High Year of Tenure (HYT), which was 22 October 1999.  

On 22 October 1999, he submitted a memorandum to his commander requesting he be separated from military service.  In the memo he requested retirement pursuant to Title 10 United States Code (U.S.C.) 8914 and noted he did not void or waive his rights listed in the recommendation for involuntary discharge package he received from his commander.  He also asked about any information regarding the retirement package he submitted on 15 March 1999.  His application for retirement was refused by local retirement processing officials because he was on admin hold as a result of the civilian investigation.

He was honorably discharged effective 23 October 1999 for completion of required active service after serving 24 years and 8 days.  He was discharged in the grade of Master Sergeant (MSgt/E-7).

On 26 October 1999, his counsel submitted a letter to the Wing Commander asking the commander to ensure the applicant’s retirement paperwork was being processed and his family receive the appropriate identification necessary for them to obtain retirement benefits.  Counsel was notified by the Wing JA that the applicant and his military counsel were informed that an election to separate on his Date of Separation (DOS) rather than voluntarily extending his enlistment would mean he would be separating without having applied for retirement and he would be ineligible to apply for retirement.

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AIR FORCE EVALUATIONS:

AFPC/DPPRRP addresses the retirement aspect of this case and recommends denial.  DPPRRP states the applicant was the subject of an AFOSI investigation from 7 January 1999 through 31 March 1999 and, in accordance with AFI 36-3203, Service Retirements, any retirement application he would have submitted would not have been considered as he was precluded from submitting an application during that time.  Because he had been charged by civil authorities, but not yet convicted, the restriction prohibiting his application for retirement could’ve been waived if the nature of the civil charges did not warrant administrative action.  However, on 7 September 1999, he pled guilty to all four counts and administrative discharge action began.

DPPRRP states the applicant was fully briefed that he was entitled to request extension of his enlistment and await SAF/PC’s decision on retirement in lieu of discharge.  Clearly, with 24 years of service, he had much to lose by not extending yet he signed a request for separation.  Regarding his contention that he qualifies for retirement under Title 10 USC 8914, DPPRRP argues that in this case he would have been required to submit a new application for retirement when his discharge processing was complete.  He would have had to extend his enlistment to ensure his discharge processing could be completed and he chose not to do so.  The “administrative hold” to which the applicant refers applies to reassignment, not retirement.  The applicant may have been put on administrative hold, but it was the AFOSI investigation, civil charges, guilty plea, and pending administrative discharge action that precluded him from submitting a retirement application.

DPPRRP’s complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPRS addresses the separation processing and recommends denial.  DPPRS states based on the documentation on file in the master personnel records and the severity of the offenses committed, the applicant voluntarily elected to separate on his DOS of 23 October 1999.  He submitted no evidence nor identified any errors or injustices that occurred during his separation process.  Additionally, he provided no facts to warrant his separation be changed to a retirement.

DPPRS’s complete evaluation, with attachment, is at Exhibit D.

AFPC/JA first questions the fact that applicant waited some four and one-half years to submit his application with the explanation provided that he did not want to bring further embarrassment to the Air Force or his family by starting this process while under incarceration.  JA states the reason for the delay, while arguably a noble excuse, is not sufficient rationale for him to have waited longer than the requisite 3-year time limit with which to file.  JA recommends his application be denied as untimely, and the time limit not be waived in the interest of justice.

JA concurs with AFPC/DPPRRP’s findings the applicant was properly denied the ability to apply for retirement under the auspices of AFI 36-3203, due to his being the subject of an AFOSI investigation and the civil charges against him.  Also, by electing to separate upon the expiration of his term of service, thus guaranteeing him an honorable discharge, applicant waived his opportunity to pursue a retirement; i.e. he made a conscious choice, after benefit of legal counsel, to waive the opportunity to obtain his retirement.  That his records now reflect the results for which he bargained does not, in JA’s view, constitute an error or injustice.  In JA’s opinion, the Board should not permit the applicant to gain through the back door what he could have and should have pursued utilizing the properly constituted means had he chosen to do so.  His conscious choice to give up a chance at a possible retirement enabled him to effectively cut his potential losses and secure himself an honorable discharge.  

JA recommends the application be denied as untimely.  Should the Board determine to consider the application on it’s merit, we would recommend that it be denied as the applicant has failed to establish any error or injustice prejudicial to his substantial rights.

JA’s complete evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant’s counsel on 21 May 2004 for review and comment within 30 days.  As of this date, no response has been received by this office.

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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 the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  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, AFPC/JA in particular, and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  By virtue of having served more than 20 years of service, he was given the opportunity to choose whether or not to accept an honorable discharge without retirement benefits or to request extention of his enlistment and await SAF/PC’s decision on retirement in lieu of discharge.  He chose an honorable discharge.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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-2004-01083 in Executive Session on 15 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Mar 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 23 Apr 04, w/atchs.
    Exhibit D.  Letter, AFPC/DPPRS, dated 29 Apr 04, w/atch.
    Exhibit C.  Letter, AFPC/JA, dated 12 May 04.
    Exhibit E.  Letter, SAF/MRBR, dated 21 May 2004.