RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00193 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: He be allowed to retire from the Air Force. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. On 15 July 2001, he became a recruiter and was very successful until 6 September 2003, when the Office of Special Investigations (OSI) began an investigation into allegations he had violated Air Education and Training Command Instruction (AETCI) 36-2909, Professional and Unprofessional Relationships (alleging an inappropriate relationship with two applicants). 2. In May 2005, he was convicted of most of the specifications and was sentenced to a dishonorable discharge, confinement for 18 months, and reduction to the grade of airman basic. During sentencing, his attorneys argued to save his retirement and requested he not be discharged from the military and the jury seemed to agree he should be allowed to retire. Prior to their sentence recommendation, the jury reduced him to the grade of senior airman and even asked questions regarding what retirement plan he was under. 3. He has attempted to file for retirement several times only to be told by the personnel office he was ineligible. If the 12 months of confinement given by the second court-martial for bad time is deducted, he still has over 20 years and thus is eligible for retirement. Also, AFI 36-3208, Administrative Separation of Airmen, clearly states “you may not involuntarily hold someone whose ETS has expired just to do a discharge action.” His expiration term of service (ETS) expired in 06. 4. He questions “the fairness and impartiality of the convening authority in deciding the action on his case when he had already agreed to initiate a discharge board.” He believes the military justice system should be fair and impartial to all of its members, not just to higher ranking individuals. There are two cases of general officers who were treated more leniently than he was and allowed to retire. 5. He states the mother of his daughter died suddenly and his daughter has had serious emotional problems since her mother’s death. His daughter is still receiving assistance for her emotional problems and he will be unable to continue her care without the assistance of Tri-care. In support of his request, the applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, a personal statement, AF Form 1359, Report of Result of Trial; copies of memorandums, and an Air Force Times news article. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 28 August 1986, the applicant enlisted in the Regular Air Force. In 2002, the applicant, then a technical sergeant was a recruiter located near Patrick Air Force Base, Florida. On several diverse occasions that year, he was alleged to have engaged in inappropriate activities with female recruits, including sexual activities, providing alcohol, going to a club called “Bare Assets,” and asking one of the recruits if she could arrange dates for him with her friends. He was eventually charged with 10 specifications of violating a lawful general regulation for engaging as a recruiter in these inappropriate activities with applicants to the Air Force, in violation of Article 92, Uniform Code of Military Justice (UCMJ); and two specifications of wrongfully providing alcohol to minors, in violation of Article 134, UCMJ. All but one of the violations of Article 92, UCMJ, were referred to trial by general court- martial. On 14 May 2005, the applicant was found not guilty of one specification of engaging unprofessionally toward one of the female recruits, but found him guilty of both charges and the remaining specifications. He was sentenced to a dishonorable discharge, confinement for three years, forfeiture of all pay and allowances and reduction to the grade of airman basic. On 16 April 2007, the Air Force Court of Criminal Appeals (AFCCA) heard oral arguments in the applicant’s case. On 16 August 2007, the AFCCA issued a decision in his case, setting aside the findings and sentence and authorized the convening authority to order a rehearing of the case. On 1 Feb 08, the applicant was notified of his commander’s intent to recommend he be discharged from the Air Force for commission of serious offenses and issued an Under-Other-Than- Honorable-Conditions (UOTHC) discharge. The specific reasons for this action were: 1) Between on or about 1 Jun 02 and on or about 30 Aug 02, he violated a lawful general regulation by developing an unprofessional relationship and engaging in sexual activities with and providing alcohol to Ms. X, then an applicant or recruit of the Air Force; 2) On or about 17 Jul 02, violated a lawful general regulation by going to “Bare Assets,” a club, with Ms. N, on a personal social basis, who was then an applicant or recruit with the Air Force; 3) Between on or about 1 Feb 02 and on or about 14 Jul 02, violated a lawful general regulation by developing an unprofessional relationship and engaging in sexual activities with and providing alcohol to Ms. B, then an applicant or recruit with the Air Force. For the above misconduct, he was convicted by a general court- martial on 17 Jan 08. His sentence included confinement for one year, reduction to the grade of airman first class and a reprimand. On 8 Feb 08, the applicant acknowledged receipt of the notification, consulted counsel and waived his right to submit a statement on his own behalf. On 3 Apr 08, the convening authority approved the findings and sentence as adjudged. The applicant was credited “with any portion of the punishment served from 14 May 05 to 16 Aug 07, under the sentence adjudged at the former trial of his case.” Due to this fact, the applicant was not required to serve any more time in confinement. On 3 Jun 08, the applicant was discharged from the Air Force with an honorable discharge in the grade of airman first class. He served 21 years, zero (0) months and 26 days of total active service. The remaining relevant facts pertaining to this application extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits D and E. Pursuant to the Board’s request, the Federal Bureau of Investigations (FBI), Clarksburg, WV, provided a copy of an Investigative Report (Exhibit C). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM addressed the applicant’s involvement in the military justice system. JAJM states the applicant alleges error or injustice in the ultimate disposition of his military career; he was administratively discharged with an honorable discharge, but was not permitted to retire. He does not protest his innocence or allege error or injustice in the course of his involvement in the military justice system. The Record of Trial indicates there was no error or injustice in the applicant’s case. In fact, the applicant’s case is a very good example of how the Air Force strives through its military justice system to balance the need for good order and discipline with the rights of Airmen. At his court-martial, the applicant pled not guilty to the offenses and was able to have a panel of officer members decide whether the evidence showed, beyond a reasonable doubt, the applicant had committed the offenses. The members heard all of the evidence and found the applicant guilty of the charges and all but one of the specifications and then imposed what they determined to be an appropriate sentence. After the trial, the applicant’s case was automatically referred to the Air Force Court of Criminal Appeals (AFCCA). After the AFCCA found an error in the applicant’s trial, they set aside the findings and sentence and a rehearing of the case was ordered. At the rehearing, the applicant was afforded the same protections and rights as he had at the original trial. Even though the members found him guilty of seven specifications of violating a lawful general regulation, the applicant did not receive a punitive discharge as part of his sentence. As with the original trial, the post-trial processing of the rehearing shows no evidence of error or injustice. To the extent that there was error in the process of the applicant’s court-martial, that error was discovered by the applicant’s appellate defense counsel and corrected by the AFCCA. The applicant’s allegation of injustice pertains to the processing of his administrative discharge and the denial of his requests for retirement. Both of these actions are separate from the court-martial process. They depend on the outcome of the court-martial only insofar as those administrative actions are not typically commenced unless a punitive discharge is not included in the sentence and until the court-martial post-trial processing is completed. The applicant has also asked for clemency from the Board on the basis of the hardship of his family situation. Clemency may be granted under 10 U.S.C. 1552 (f)(2), but the ultimate request of clemency from the applicant really goes to the issue of his discharge and retirement. The applicant has not provided sufficient justification for a request of clemency with regard to the outcomes of the court-martial or rehearing. Since the Board cannot grant the ultimate act of clemency with regard to the court-martial (expungement), any act of clemency on the court-martial could only address the sentence received by the applicant. Since the applicant did not receive a punitive discharge, there is little sense in granting clemency with regard to the confinement (already served), reduction in grade or reprimand. In any case, the sentence imposed by the members was appropriate to the offenses committed by the applicant. The complete JAJM evaluation is at Exhibit D. HQ AFPC/DPSOR recommends denial of the applicant’s request to retire. DPSOS states the applicant’s record shows he reenlisted on 19 Jun 01 for five years, making his expiration term of service (ETS) 18 Jun 06. With 8 months, 12 days lost time from 14 May 05 to 26 Jan 06, his ETS would be adjusted from 18 Jun 06 to 3 Mar 07. However, because the applicant requested appellate review and was granted the rehearing of his case, the Air Force extended his enlistment as provided in AFI 36-2606, Reenlistment in the United States Air Force. In Feb 08, the applicant attempted to apply for retirement but his service dates had not yet been adjusted for his lost time from 14 May 05 to 26 Jan 06, for appellate review, or for court- martial action related to the rehearing. On 4 Mar 08, DPSOR confirmed the service date verification office had not received the AF IMT 2098, Duty Status Change, showing the applicant’s return to duty on 26 Jan 06. The applicant’s Total Active Federal Military Service Date (TAFMSD) was changed from 28 Aug 86 to 8 May 87, after adjustment for lost time, making him first eligible for retirement effective 1 Jun 07. AFI 36-3203, Service Retirements, table 2.2., rule 11 authorizes an enlisted member to request to retire in lieu of an administrative discharge action when the member is retirement eligible. If the member has an ETS, in accordance with (IAW) AFI 36-2606, figure 4.1., the member may voluntarily request to extend the enlistment in one-month increments to await the outcome of the SAF decision as to whether the member will retire in lieu of the discharge or be discharged. The applicant had an ETS of 3 Jun 08 and did not apply for a retirement in lieu of the discharge action or request extensions to await the outcome of the SAF decision as to whether he would be retired or discharged. As a result, the applicant was discharged on his ETS of 3 Jun 08. Members who are facing an administrative discharge action who do not elect to request a retirement in lieu of the discharge action or who do not voluntarily request extensions to await a SAF decision concerning the retirement in lieu of the discharge action, receive a DD Form 214, showing a discharge date of their ETS. The applicant may have chosen to be discharged on his ETS in order to secure the “honorable” characterization of service to remain eligible for Department of Veterans Administration (DVA) benefits rather than risk a lower characterization of service from an administrative discharge board. In the notification memorandum dated 1 Feb 08, the applicant’s commander warned the applicant he was recommending a “UOTHC” discharge and the administrative discharge board could result in this action. His commander also informed him of his right to apply for retirement in lieu of the administrative discharge action. Because the applicant did not submit a retirement application and did not voluntarily extend in one-month increments to await the outcome of the SAF decision concerning whether he could retire in lieu of the discharge action, the applicant forfeited his right to retire in favor of an “honorable” discharge when he may have been given a UOTHC discharge by the discharge board. The decision of the court-martial rehearing to drop the “dishonorable discharge” from the applicant’s sentence is a separate action from the proposed administrative discharge. It is clear from the applicant’s actions he chose to be discharged on his ETS with an “honorable” characterization of service rather than to possibly face a UOTHC discharge. The complete DPSOR evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 15 April 2011 for review and comment within 30 days (Exhibit F). As of this date, this office has not received a response. ________________________________________________________________ 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 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. After a thorough review of the evidence of record and the applicant’s complete submission, we are not persuaded that his records should be changed. In this regard, we note that the discharge appears to be in compliance with the governing regulation in effect at the time and we find no evidence to indicate that the applicant’s discharge from the Air Force was inappropriate, unduly harsh, or disproportionate to the offenses committed. The applicant’s contentions were duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override rational provided by the Air Force. Therefore, we agree with the opinions and recommendations of the 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. In the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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. _________________________________________________________________ The following members of the Board considered Docket Number BC-2011-00193 in Executive Session on 23 Aug 11, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-00193 was considered: Exhibit A. DD Form 149, dated 19 Jan 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report, dated 19 Apr 11. Exhibit D. AFLOA/JAJM, Letter, dated 25 Feb 11. Exhibit E. AFPC/DPSOR, Letter, dated 11 Mar 11. Exhibit F. SAF/MRBR, Letter, dated 15 Apr 11. Panel Chair