AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER: 96-00185 

COUNSEL:  None 

DEC 

7  19% 

HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT :.' 
The findings and sentence of his court-martial be dismissed, he 
be  awarded  pay  and -allowances,  his  discharge  be  upgraded  to 
honorable,  he  be  retroactively  promoted,  he  be  permitted  to 
retire, and that his records be expunged. 

APPLICANT CONTENDS THAT: 

The presumption of  regularity that might normally permit  one to 
assume  that  the  service  acted  correctly  in  characterizing his 
service as less than honorable does not  apply in his case. The 
discharge, stoppage of pay and allowances, denial of retirement, 
command procedures, and confinement were all improper. 
A COPY of applicant's complete submission is at Exhibit A. 

STATEMENT OF FACTS: 

Although  he  pled  not  guilty,  applicant  was  found  guilty 
general  court-martial  of  raping  and  committing  oral  sodomy 
indecent acts on his two daughters on diverse occasions. Some 
the specifications indicate the victims were under the age of 
at the time of the offense. On 29 August 1992 he was sentenced 
a dishonorable discharge, confinement for 10 years, and reduct 
to  airman  basic.  He  was  discharged  from  the  Air  Force 
29 September 1995. 

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entence at  the US  Disciplinary Barracks at 
and had a minimum release date of 14 August 
998, the Air Force Clemency and Parole Board 
(SAFPC) denied his request for parole; however, with accumulated 
good  time, he  was  released before  his  minimum  release  date  on 
22 Jun.e 1998. 

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. 
Accordingly,  there  is  no  need  to  recite  these  facts  in  this 
Record of Proceedings. 

AIR FORCE EVALUATION: 

The Chief, Relief and Inquiries Branch, AFLSA/JAJM, reviewed the 
appeal  and  recommended  that  applicant's  requests  be  denied. 
Applicant  claims  he  was  incorrectly  incarcerated  at  the 
conclusion of his trial; however, he cited an outdated version of 
Title  10, USC,  Section 871  (1968) to  support  his  position  and 
thus  misstates  the  law.  He  claims  his  pay  was  illegally 
terminated  on  30  September  1992.  His  enlistment  expired  on 
30 September  1992  rendering  him  ineligible  for  pay  and 
allowances. Once a military member is in military confinement and 
his  term of service has  expired, it  cannot be  extended. As  for 
the punishment he received, the maximum punishment authorized for 
the  offenses of  which  he  was  convicted  included a  dishonorable 
discharge, confinement for life, total forfeitures of all pay and 
allowances, a reduction to E-1, and a fine. On appeal the US Air 
Force Court of Military Review upheld applicant's sentence after 
dismissing  two  (2) specifications.  The  fact  that  he  lost  his 
retirement  benefits  as  a  result  of  his  dishonorable  discharge 
does  not  amount  to  an  unconstitutionally  excessive  punishment. 
Moreover,  military  courts  have  routinely  held  that  loss  of 
retirement benefits as a result of a punitive discharge does not 
violate the Eighth Amendment. 

A copy of the complete evaluation is at Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Applicant  reviewed  the  Air  Force  evaluation  and  provided  a 
response,  wherein  he  expounds  on  the  pay  and  incarceration 
issues, citing statutes and regulations he  believes entitle him 
to  active  duty  pay  while  being  held  for  trial  and  until  his 
appeals were completed and his sentence was approved and ordered 
executed. 
He  further  argues  that  the  retirement  order  was 
illegally  rescinded  in  February  1992.  He  also  raises  a 
jurisdictional  issue,  contending  that  the  complaints  filed 
against  him  were  "purely of  a  civil  nature, with  no  military 
service connection,lr and that he is now being illegally confined 
as a civilian. 

A copy of his complete rebuttal, with attachments, is at Exhibit 
E. 

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96-00 185 

ADDITIONAL AIR FORCE EVALUATION: 

The  Associate  Chief,  Military  Justice  Division,  AFLSA/JAJM, 
provided  additional  remarks  pertinent  to  the  issues  applicant 
raised in his rebuttal. The basic rule at the time of applicant's 
court-martial was  that  in a  case with  no  adjudged  forfeitures, 
such as the applicant's, pay continued for a military member  in 
confinement  until  his  previously  established  (prior to  court- 
martial)  term  of  service  or  enlistment  expired  or  until  his 
punitive  discharge  was  executed, whichever  occurred  first.  The 
rescinding of the retirement order in February 1992 was entirely 
proper.  His  assertions  concerning  a  lack  of  military  court 
jurisdiction  over  him  are  wholly  without  merit.  There  was  no 
necessity  that  the  alleged  crimes  take  place  on  a  military 
installation  or  a  place  under  military  control.  Applicant's 
counsel had  the opportunity to raise any and all  jurisdictional 
issues during  trial  and  the military  appellate  courts  found no 
insufficiency of jurisdiction. Applicant's request for relief is 
not warranted. 

A copy of the complete additional evaluation is at F. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 

Applicant  reviewed  the  additional  evaluation  and  contends  the 
denial  of  retirement, pay,  and  his  confinement  violated  three 
constitutional provisions, 14 statutes, one Executive Order, and 
five regulations. The  [advisory] has not provided any evidence to 
contradict  the  validity  of  this  application,  which  should 
therefore be granted. 

A copy of  applicant's complete rebuttal, with  attachment, is  at 
Exhibit H. 

ADDITIONAL AIR FORCE EVALUATION: 

The  Deputy  Chief, General  Law  Division, HQ  USAF/JAG,  reviewed 
this  appeal  and  states  that  applicant's  claim  that  he  was 
entitled  to retire and  could not  be  deprived of  that  right  was 
raised in his criminal appeal and rejected based on long-standing 
precedent.  Eligibility must  be  distinguished from  entitlement. 
An  enlisted  member  must  have  20  years  active  service  to  be 
eligible  for retirement under  Title  10, USC,  Section  8914, but 
approval of  such voluntary retirement  is at  the decision of  the 
Secretary.  (Although  issued  in  1997,  Cedillo  v.  US  concerns 
statutory  language  unchanged  since  1956.)  A  different  rule, 
Section  8917, governs  enlisted  members  with  over  30  years  of 
active  service.  rrMayll is  a  discretionary  term;  %halli1  is 
mandatory. Accordingly, applicant did not have a vested right to 
retire and  the Air  Force  was within  its statutory authority  to 

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96-00 185 

retire and  the Air  Force was within  its statutory authority  to 
disapprove  his  retirement  application.  As  to  the  regulatory 
provision  concerning  finality  of  the  retirement  order,  the 
applicant misconstrues the term Ilexecuted."  His retirement order 
was  published  on  20  July  1 9 9 1 ,   but  it  was  never  executed,  an 
event which could not legally have occurred until 1 June 1992 and 
did  not  occur  because  the  order  was  first  rescinded.  Thus, 
rescinding the order in February 1992 did not violate AFR  35-7. 
As to this issue, the application should be denied; no opinion is 
expressed on the remainder of the application. 

A  copy of the complete additional evaluation is at Exhibit I. 

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: 
A complete copy of the additional evaluation was forwarded to the 
applicant on 5 August 1998 for review and comment within 30 days. 
As of this date, no response has been received by this office. 

THE  BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 

2.  The application was timely filed. 

3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice. After a 
thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we are not persuaded that the requested relief should 
be granted.  Applicant's contentions are duly noted; however, we 
do not find these assertions, in and by themselves, sufficiently 
persuasive  to override the rationale provided by  the Air  Force. 
We therefore agree with the recommendations of the Air Force and 
adopt the rationale expressed as the basis for our decision that 
the  applicant  has  failed  to  sustain  his  burden  that  he  has 
suffered either an error or an  injustice. In view of  the  above 
and  absent  persuasive  evidence  to  the  contrary,  we  find  no 
compelling basis to recommend granting the relief sought. 

THE BOARD DETERMINES THAT: 

The  applicant  be  notified  t h a t   the  evidence  presented  did  not 
demonstrate  the  existence  of  probable  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 this application in 
Executive Session on 23  June 1998 and 16 October 1998 under the 
provisions of AFI 36-2603: 

Mr. Wayne R. Gracie, Panel Chair 
Mr. Jackson A. Hauslein, Member 
Mr. Allen Beckett, Member 

The following 

Exhibit A. 
Exhibit B. 
Exhibit C. 
Exhibit D. 
Exhibit E. 
Exhibit F. 
Exhibit G. 
Exhibit H. 
Exhibit I. 
Exhibit J. 

documentary evidence was considered: 
DD Form 149, dated 18 Jan 96, w/atchs. 
Applicant’s Master Personnel Records. 
Letter, AFLSA/JAJM, dated 22 Apr 97. 
Letter, AFBCMR, dated 19 May 97. 
Applicantis response, dated 28 May 97, w/atchs. 
Letter, AFLSA/JAJM, dated 20 Nov 97, w/atch. 
Letter, AFBCMR, dated 11 Mar 98. 
Letter, Applicant, dated 1 Apr 98, w/atch. 
Letter, HQ USAF/JAG, dated 15 Jul 98. 
Letter, AFBCMR, dated 5 Aug 98. 

WAYNE R. GRAYCIE 
Panel Chair 

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