RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02260

		COUNSEL: YES
	
		HEARING REQUESTED: YES

APPLICANT’S REQUEST

His under other than honorable conditions (UOTHC) discharge be overturned and instead he be retired and receive retirement back pay.

APPLICANT’S CONTENTIONS

The reason for his involuntary discharge was based on a civilian conviction that has since been overturned (22 Jun 16).  He submitted a 113-page request to the Secretary of the Air Force (SAF) requesting retirement in lieu of administrative discharge but his squadron never released the documents up the chain of command to the SAF.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force technical sergeant (E-6). 

On 19 Aug 13, the applicant’s commander notified him he was recommending him for discharge from the Air Force, under the provisions of AFI 36-3208, Administrative Separating of Airmen, Chapter 5, paragraph 5.51 for Civilian Conviction. The specific reason follows:

“You, being a person who was seventeen (17) years of age or older, did, at or near [City, State], on or about 13 Dec 11, with intent to arouse or gratify your sexual desires, intentionally communicate over the internet, by electronic messaging and text messaging, in an sexually explicit manner, to-wit: talking about oral, vaginal, and anal sexual intercourse with [individual] whom you believed to be younger than fourteen (14) years of age, which conduct was of a nature to bring discredit upon the armed forces and a violation to [State] Penal Code, Title 7, Section 33.021(b). You were arrested for this criminal conduct by [County] Sherriff Deputies when you attempted to meet who you believed to be the minor in a local park. When you were arrested, you were in uniform and had condoms and sexual lubricant in your possession. For this misconduct you were reprimanded, as evidenced by a Letter of Reprimand (LOR), dated 2 Oct 12, and for which you had an Unfavorable Information File (UIF) established, as evidenced by AF Form 1058, dated 10 Oct 12. On 6 Nov 12 you were administratively demoted to the permanent grade of technical sergeant under the provisions of AFI 36-2502, Airmen Promotion/Demotion Programs, Chapter 6, paragraph 6.3.4, Failure to Fulfill Senior Noncommissioned Officer Responsibilities under AFI-36-2618, The Enlisted Force Structure, as evidenced by Special Order AA-061, dated 14 Nov 12. On 17 Jul 13 you were convicted in [County] Court for On-line Solicitation of a Minor and sentenced to ten (10) years Institutional Division, IDCJ and a $10,000.00 fine, as evidenced by Judgment of Conviction By Jury, dated 18 Jul 13.”

On 20 Aug 13, the applicant responded to the discharge action and elected an administrative discharge board and requested lengthy service probation (LSP) consideration.

On 26 – 27 Nov 13, the Air Force Discharge Review Board recommended the applicant be discharged with a UOTHC service characterization with no opportunity for Probation and Rehabilitation.

On 7 Jan 14 and on 6 Feb 14, the discharge action was found legally sufficient and the discharge authority concurred with the recommendation on 6 Feb 14, however execution of the discharge action was withheld pending the final decision on LSP by the SAF Personnel Council (SAFPC).

On 14 May 14, SAFPC approved administrative discharge for the applicant and denied LSP and disapproved retirement.

On 30 May 14, the applicant was issued a UOTHC discharge, with narrative reason for separation of “misconduct (civil conviction)” and was credited with 20 years, 5 months, and 28 days of active service.

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

AIR FORCE EVALUATIONS

AFPC/DP2SSR recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error injustice.  SAFPC considered the applicant’s case on 29 Apr 14.  After considering the facts of the case and the recommendations of the commanders concerned, the Council unanimously recommended the applicant’s request for LSP and/or retirement be denied.  The applicant was convicted, after a jury trial, of a serious offense resulting in his registration as a sex offender.  The board considered the fact that the crime was committed in Dec 11, well before he reached retirement eligibility.  The applicant’s crime and actions are egregious warranting denial of the retirement/LSP and execution of the discharge with a UOTHC service characterization.  Much of the Council’s deliberation focused on the loss of the applicant’s retirement and the resulting impact on the family.  However, the Council could not articulate a sound rationale to support deciding in favor of the applicant that would satisfy the best interest of the Air Force. Accordingly, the applicant’s crime and actions warranted denial of retirement/LSP.

The complete advisory opinion is at Exhibit C.

AFPC/JA recommends denying the application.  There were no errors in the processing of the involuntary separation against the applicant, and no injustice in allowing the discharge to stand on the subsequent conviction resulting from the re-trial.  The applicant has correctly identified that his original conviction (which served as the basis of his discharge) was set aside. However, of equal importance is the fact that his subsequent indictment, though worded slightly differently, is based on the same facts and circumstances which formed the basis for the original conviction. Additionally, after being re-tried before a jury, on these same facts and circumstances, the applicant was again convicted of the same charge of Online Solicitation of a Minor.  The facts presented in the application clearly show sufficient evidence existed for a finding of guilty on the charge of Online Solicitation of a Minor. As such, the discharge decision, on the basis of his initial conviction, was not “arbitrary, capricious, in bad faith, unsupported by substantial evidence or contrary to law, regulation or published procedure.” Additionally, as the applicant currently has a conviction against him for Online Solicitation of a Minor (the original charge), based on the same facts and circumstances of the original conviction, it is not an injustice to the applicant to have his discharge stand.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent copies of the advisory opinions to the applicant on 15 Oct 20 for comment (Exhibit E), the applicant requested an extension to review and comment on the advisory opinions on 5 Nov 20 and on 2 Mar 21, he requested closure to allow more time to provide a response.  On 3 Apr 21, the applicant requested his case be re-opened.  The applicant disagreed with the advisory opinions and also pointed out the Board granted relief in other discharge cases of misconduct for serious offenses. If the Board does not make a decision in his favor, he believes they should consider making his character of discharge more equitable.

The applicant’s complete response is at Exhibit F.

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 not the victim of an error or injustice.  While the applicant’s original conviction, which served as the basis for his discharge, was set aside; his subsequent indictment is based on the same facts and circumstances that formed the basis for the original conviction. SAFPC considered the applicant’s lengthy service and the impact his discharge would have on his family; however, due to the egregious nature of the crime, his request was denied.  Therefore, the Board concurs with the rationale and recommendation of AFPC/DP2SSR and AFPC/JA, and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The applicant makes several arguments that previous Boards set precedent when they granted relief in cases similar to his.  Each case before this Board is considered on its own merits.  While the Board strives for consistency in the manner in which evidence is evaluated and analyzed, they are not bound to recommend relief in one circumstance simply because the situation being reviewed appears similar to another case.  Notwithstanding the above, other than the applicant’s own assertions he has not cited a specific similar case he claims supports that he has been the victim of an error or injustice. Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown that a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2020-02260 in Executive Session on  22 Jul 21:

Panel Chair
Panel Member
Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 26 May 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SSR, dated 8 Sep 20.
Exhibit D:	Advisory opinion, AFPC/JA, w/atchs, dated 10 Oct 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 15 Oct 20.
	Exhibit F: Applicant’s responses, w/atchs, dated 23 and 30 Apr 21 and 3 May 21.

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