RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04123

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXX
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  His DD Form 214, Certificate of Release or Discharge from Active Duty, Block 12b, Separation Date This Period, be corrected to reflect 18 May 2018 versus 8 March 17.

2.  He be retroactively promoted to the grade of E-6 (technical sergeant).  

3.  He receive back pay for the period of his confinement, and the period in which he was pending retrial.  (Back pay for his period of confinement administratively resolved by the Defense Finance and Accounting Service)

APPLICANT’S CONTENTIONS

His date of discharge is erroneous because he was retained on active duty until 18 May 2018, to face a court-martial rehearing.  Despite his acquittal of all charges, he has received no back pay.  For his time in confinement, or when he was on appellate leave.  However, Department of Defense Financial Management Regulation (DoDFMR) Volume 7A, Military Pay Policy – Active Duty and Reserve Pay, Chapter 48, paragraph 480802, states, “When an executed court martial sentence which includes a forfeiture is set aside or disapproved, and a new trial or rehearing is ordered that results in an approved sentence to forfeiture, credit the member with the amount of any forfeiture affected under the first sentence.”  Additionally, as a matter of equity, he should be retroactively promoted to the grade of E-6; a grade he would likely have achieved, but for an improper and lengthy period of confinement.   

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force airman basic (E-1).  

On 15 December 2009, the applicant enlisted in the Regular Air Force.

According to documentation provided by the applicant and analysis of the facts, the following information is provided:

On 15 March 2014, the applicant, an airman (E-2) was tried at a general court-martial.  Contrary to his pleas, he was found guilty of engaging in sexual acts, to wit: sexual intercourse, by using a restraint applied to the body, sufficient that the victim could not avoid or escape the sexual conduct, in violation of Article 120, Uniform Code of Military Justice (UCMJ); and unlawfully pushing and covering the nose and mouth of the victim with his hands, in violation of Article 128, UCMJ.  He was sentenced to confinement for four years, forfeiture of all pay and allowances, and reduction to the grade of E-1.  The Convening Authority approved only so much of the sentence, which called for forfeiture of all pay and allowances and confinement for four years to be executed.  

On 15 March 2014, according to AF IMT 2098, Duty Status Change, dated 19 March 2014, the applicant was placed in duty status code 17 (Military Confinement) for a period of four years.  

On 13 February 2017, according to AF IMT 2098, the applicant was released from military confinement and placed on duty status code 00 (Present for Duty), effective 14 February 2017, with 1067 lost days. 

On 8 March 2017, the applicant was honorably discharged, in the grade of E-1, having served 4 years, 2 months, and 15 days of active service.  

On 10 March 2017, the Total Force Service Center (TFSC) prepared the applicant’s DD Form 214, which reflects his character of service as “honorable,” the Separation Authority as “AFI 36-3208,” and a narrative reason for separation of “Completion of Required Active Service.” He was discharged in the grade of E-1 and was credited with 4 years, 3 months, and 15 days of active service.  Block 29, Dates of Time Lost During This Period, reflects 15 March 2014 to 13 February 2017.

On 22 May 2017, the Court of Appeals for the Armed Forces (CAAF), reversed the applicant’s conviction and authorized the Convening Authority to order a re-hearing in his case.  

On 12 June 2017, the applicant’s DD Form 214 was reissued for administrative corrections.  Specifically, his grade was corrected to reflect E-2 and his lost time was removed.  

On 28 March 2018, the Convening Authority issued Special Order A-12 and Special Order A-13 to involuntary recall the applicant to active duty during the period 2-5 April 2018 to cover the period of motions in April 2018, and 12-19 May 2018 to cover the retrial hearing in May 2018.  Both Special Orders listing Fund Cites for Military Personnel Appropriation pay/allowances.  

On 6 September 2018, the Convening Authority issued GMCO No. 17.  The Order stated the applicant was acquitted of all charges.  All rights, privileges, and property of which the applicant has been deprived by virtue of the sentence in his former trial were restored.

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

APPLICABLE AUTHORITY

DoDFMR, Volume 7A, Military Pay Policy – Active Duty and Reserve Pay, Chapter 48

Pay Entitlements While Awaiting New Trial or Rehearing: In accordance with regulations established by the Secretary concerned, for the period after the date on which an executed part of a court-martial sentence is set aside, an accused who is pending a rehearing, new trial, or other trial shall receive the pay and allowances due at the restored grade.

AFI 51-201, Administration of Military Justice, paragraph 14.29.2., states, “Pursuant to Article 76 (a), UCMJ, an accused may only be placed on involuntary appellate leave when the approved sentence includes a punitive discharge.” 

AIR FORCE EVALUATION

AFPC/DP2SSR recommends denying the applicant’s request to change his date of discharge.  Based on a review of the applicant’s request and his master personnel record, there is no error or injustice with the discharge processing or the date of separation.    

The applicant’s original date of separation (DOS) of 27 February 2017, was adjusted to 8 March 2017 by his Military Personnel Flight to allow him enough time to out-process after his release from confinement since he was at his expiration of term of service (ETS).  Because the applicant’s court-martial conviction did not include a punitive discharge and his unit commander chose not to initiate administrative discharge action, the applicant was separated based on completion of required active service and given an honorable service characterization.  Upon separation, the applicant was transferred to Head Quarters (HQ) Air Reserve Personnel Center (ARPC) due to having some remaining military service obligation time to be completed with the Air Force Reserve.  The two instances he was briefly brought onto active duty would have been handled by ARPC, and has no bearing on the 8 March 2017 DOS/ETS.  

The complete advisory opinion is at Exhibit C.

AFPC/DP2SPP recommends denying the applicant’s request for retroactive promotion to the grade of E-6.  The applicant entered active duty on 15 December 2009, as an airman first class (E-3).  Documentation provided by the applicant and analysis of the facts revealed his grade was E-2, with a date of rank (DOR) of 14 October 2011, when he entered confinement directed by GCMO No. 22, dated 4 September 2014.     

In accordance with AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, the applicant would have been eligible for promotion to senior airman (E-4) on 26 February 2015.  Based solely on an E-4 DOR of 26 February 2015, the first time the applicant would have been eligible for promotion consideration to staff sergeant (E-5) was cycle 16E5.  They are unable to provide promotion consideration to E-5 or E-6, as there are no tests  on file (as the applicant never held the rank of E-4 and therefore was never eligible to test for promotion).  Tests are an integral part of the weighted factors and the promotion selection process.  Without test scores, it is not possible to provide promotion consideration.  However, they do recommend removal of the 14 March 2014, referral EPR since its basis was the court-martial conviction, which was set-aside.  

The complete advisory opinion is at Exhibit D.

AFPC/DP2LT recommends denying the applicant’s request to change his date of discharge, agreeing with the advisory provided by AFPC/DP2SSR.  However, according to GCMO No. 17, dated 6 September 2018, the findings of guilty along with the sentence promulgated in GCMO No. 22, dated 4 September 2014, were set-aside and all rights, privileges, and property of which the applicant had been deprived by virtue of the sentence in his former trial were restored.  Therefore, the lost time on his DD Form 214, block 29 should be removed, and block 12c, “Net Active Service this Period,” should be corrected to reflect 7 years, 2 months, and 24 days.  (Administratively corrected with the 12 June 2017 reissuance of his DD Form 214).  

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 November 2019, for comment (Exhibit F), but has received no response.
FINDINGS AND CONCLUSION

1.  The application was timely filed.

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

3.  After reviewing all Exhibits, the Board concludes the applicant is the victim of an error or injustice.  The Board concurs with the recommendations of AFPC/DP2SSR, AFPC/DP2SPP, and AFPC/DP2LT denying changing the applicant’s date of separation, and retroactive promotion to E-6.  Additionally, evidence revealed that while the applicant was subject to a punitive discharge at his general court-martial, he did not receive one, and was honorably discharged 8 March 2017.  Therefore, in accordance with AFI 51-201, he was not placed on involuntary leave status pending his retrial, thus not eligible for pay and allowances during this period.  The Board notes the Defense Finance and Accounting Service has administratively resolved the applicant’s back pay while in confinement.  However, the applicant submitted no evidence supporting he was not paid when recalled to active duty under Special Order A-12 and Special Order A-13 during the periods 2-5 April 2018, and 12-18 May 2018.  Notwithstanding the above, the Board concurs with AFPC/DP2SPP’s recommendation that AF Form 910, Enlisted Performance Report (AB thru TSgt) for the period 15 August 13 through 14 March 2014, be removed from his records, since its basis was the court-martial conviction that was set aside.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that AF Form 910, Enlisted Performance Report (AB thru TSgt) for the period 15 August 2013 through 14 March 2014, be declared void and removed from his records. 
 
However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant 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-2019-04123 in Executive Session on 28 May 2020:

, Panel Chair 
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 30 July 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSR dated 13 September 2019.
Exhibit D:	Advisory opinion, AFPC/DP2SPP dated 13 September 2019.
Exhibit E:	Advisory opinion, AFPC/DP2LT, dated 28 September 2019.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 13 November 2019.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2019-04123, as required by AFI 36-2603, paragraph 4.11.9.