RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2017-05160

XXXXXXXXXXXXXXX	COUNSEL:  NONE

	HEARING:  NO

APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or Discharge from Active Duty be corrected to reflect his “continuous active military service” from 10 Oct 16 to 9 Nov 17.

APPLICANT CONTENDS THAT:

His DD Form 214 reflects he had lost time during the period 2 Nov 11 to 9 Dec 13; however, he served honorably in an active duty status from 10 Oct 16 to 9 Nov 17, which should be included in his DD Form 214.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 17 Dec 02.  

According to an AF Form 2098, Duty Status Change, the applicant’s status was changed from present for duty to civilian confinement (under arrest/pending trial/awaiting sentence), effective 2 Nov 11.  On 27 Feb 12, the applicant was convicted in a civilian criminal court of one count of oral copulation with a minor 10 years of age or younger and sentenced to prison for 15 years to life.  On 21 Oct 13, the applicant’s former commander approved his administrative discharge with an Under Other Than Honorable Conditions (UOTHC) service characterization.  However, the applicant’s conviction was overturned on appeal in March 2016. 

Subsequently, on 27 Sep 16, the applicant was found guilty in a criminal court for making unlawful threats, child abuse and assault with a force likely to cause great bodily harm based upon the same underlying facts of his first case.  As a result, he was sentenced to seven years in state prison, but released given that his time already served exceeded his prison sentence.  However, the Air Force was not made aware of these events until October 2016.  Because the applicant’s conviction was no longer valid, the basis for the prior administrative discharge was unenforceable.  Therefore, new discharge proceedings were initiated for commission of a serious offense, but the basis was subsequently changed to misconduct resulting in a civilian conviction to spare the victim from having to testify at an administrative discharge board.  

According to an AF Form 2098, the applicant’s status was changed from civil confinement sentenced prisoner/30 days or more to present for duty, effective 4 Oct 16.  He incurred a total loss of 1,798 days for this enlistment.  

On 19 Apr 17, the applicant’s commander withdrew the previously served notification of discharge dated 29 Nov 16, and on the same date the applicant was notified of his commander’s intent to recommend his discharge  from the Air Force under the provisions of AFI 36-3208, Administrative Separation of Airmen commander for Civilian Conviction.  The applicant acknowledged receipt of the discharge notification, consulted counsel and elected not to waive his right to a hearing before an administrative discharge board. 

On 24 Aug 17, an administrative discharge board convened to determine whether the applicant should be discharged for a civilian conviction.  The board found the applicant had been convicted of the following civilian offenses on or about 27 Sep 16:

	a.  Abusing/endangering a child’s health.

	b.  Assault with force likely to cause great bodily harm.

	c.  Making a criminal threat.

The board found a punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-Martial (MCM) and recommended the applicant be separated with an UOTHC service characterization without probation and rehabilitation.  On 2 Nov 17, the discharge authority approved the findings of the administrative discharge board and directed the applicant be separated under the provisions of AFI 36-3208.  On 9 Nov 17, the applicant was furnished an UOTHC discharge with narrative reason for separation of Misconduct (Civil Conviction).  

According to the applicant’s DD Form 214, block 29, Dates of Time Lost during this Period, he was charged lost time during the period 2 Nov 11 to 9 Dec 13.  For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

AIR FORCE EVALUATION:

AFPC/DP2STM recommends denying the application.  “Continuous honorable active military service cannot include an enlistment in which a member had lost time.”  The complete advisory is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 12 Sep 18 for comment (Exhibit D), 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 recommendation of AFPC/DP2STM 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-2017-05160 in Executive Session on 25 Oct 18:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 24 Nov 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2STM, dated 8 Aug 18.
Exhibit D:	Notification of Advisory, SAF/MRBC to applicant, dated 12 Sep 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.