AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

. 4 u I l 4  1998 

DOCKET NUMBER: 97-01631 
COUNSEL : 
HEARING DESIRED:  Yes 

APPLICANT REQUESTS THAT 

His  under-other-than-honorable conditions  (UOTHC) discharge  for 
misconduct on 2 0   September 1995 be changed to a length-of-service 
&OS)  retirement. 

APPLICANT CONTENDS THAT: 

On the  day he  was discharged  he  had  completed approximately 23 
years and 4 months of active duty and was entitled to retirement 
benefits.  He  was  never  afforded  an  opportunity  to  rebut  the 
incorrect and  incomplete information presented  to the  Secretary 
of  the  Air  Force  (SAF). The  Air  Force  interfered  with  the 
civilian judicial system. Denial of his retirement  is excessive 
punishment by the Air Force for a civilian wrong. 

Counsel submits in a supplemental argument that applicant's legal 
rights were violated at the Administrative Discharge Board  (ADB) 
because the legal advisor failed to allow the defense counsel to 
explain  to  the  ADB  members  the  affect  of  their  decision 
[separation] upon the applicant s retirement benefits. The case 
of  US  v.  Greaves  has  a  bearing  on  this  appeal.  While  it  is 
recognized that an ADB is not a court-martial, the gravity of the 
decision of the  [ADB] to deny this applicant retirement benefits 
is of such a magnitude that it calls for the same stringent due 
process rights which -are applicable in a court-martial. [In the 
Greaves case] ,  the court specifically found that a judge cannot 
minimize  matters  in mitigation  before  sentence.  In the  instant 
case, the legal advisor did exactly that by refusing to allow the 
defense attorney to argue the point concerning retirement.  This 
was plain  error and  tantamount to denying the applicant a fair 
hearing  during  the  Ilsentencing  portionll  of  the  ADB.  If  the 
members had been aware that their decision effectively precluded 
the  applicant  from  receiving  retirement  benefits  based  on  22 
years of service, they might have voted to retain him. 

Copies of applicantIs/counsells complete submissions are attached 
at Exhibit A. 

STATEMENT OF FACTS: 

87) assigned to the 6 Airlift Squadron, 

The  applicant  entered  active  duty  on  12  May  1972.  During  the 
period in question, he was a master sergeant (Date of Rank: 1 Apr 
He was 
39 years old and ha  reenlisted  for three years on 1  November 
1992.  His  performance  reports  from  1985  through  1992  reflect 
ratings of 9, 9, 9, 9, 4  (New System), 3, 4, and 4 .  
While  at a bar  on 27 January 1993, applicant was  introduced to 
the victim by a male acquaintance known by the victim. Her friend 
and the applicant followed her home because  she was having car 
trouble. The friend returned the applicant to his car at the bar. 
Applicant  then returned to the victim's home with a six-pack of 
beer and a handgun. Applicant  allegedly put  a substance in the 
victim's beer to make her  I1groggy." Applicant became angry, made 
verbal threats, grabbed the victim by the hair, shoved her to the 
floor  and  forced  her  to  orally  copulate  him,  then  forcibly 
rted the incident. On 28 January 1993, 
sodo 
D) contacted 
the 
Sheriff's Department 
for assistance i 
Deta 
entifying the 
applicant ,  wh 
ified  by  name  by  the  victim.  On 
5 February  1993,  the  victim  identified  the  applicant  as  the 
individual who raped her. Applicant was arrested. He consented to 
having  his  home  searched.  A  weapon  determined  to  be  fully 
automatic and  illegally possessed  by  him  was  seized. Applicant 
refused to answer auestions and reauested leaal counsel. He was 
Detention  Center  pending  trial 
confined  at  the 
tion, rape, sodomy and burglary. 
charges of  forcib 
On 5 March  1993, he was arraianed on these charaes. As Dart of 
the  plea  bargain  arrangement  with  the 
District Attorney, applicant pleaded nolo 
to  sexual  battery  and  first  degree  residential  burglary  with 
possession  of  a  firearm.  An  additional  element  of  the  plea 
bargain  was  dismissal  of  three  remaining  felony  charges.  On 
24 May 1993, following his agreement with a nolo  contendere  plea, 
applicant  was  sentenced  to  five  years  in  state  prison,  less 
credit for time spent in custody prior to sentencing. 

a 

J 

J 

t o   enter  nolo  contendere  p l e a s  

[According a  Declaration  provided  by  the  a p p l i c a n t ' s   a t t o r n e y   a t  
t h a t   t i m e   ( E x h i b i t   A ) ,   he  and  the  a p p l i c a n t   had  n e g o t i a t e d   a  p l e a  
t o   several 
bargain  agreement 
tee  o f   p r o b a t i o n ,   up  t o  
felony  offenses 
one  y e a r   i n   the 
i l ,  and  no  i m p o s i t i o n   o f  
a  s t a t e   p r i s o n  
t h a t   i n   a 
ttorney  adds 
the  d a t e   of 
p r i v a t e   conference  i n   the  c o u r t / s   chambers  on 
t w o   members  of  the  A i r   Force  Judge  Advocates  O f f i c e  
s e n t e n c i n g ,  
opposed  the  p l e a   bargain  agreement.  T h e   court  u l t i m a t e l y  r e j e c t e d  
the  p l e a   bargain  and  the  a p p l i c a n t   had  t o  either  a l l o w   the m a t t e r  
t o   t r a n s f e r   t o   the  A i r   Force's  j u r i s d i c t i o n   f o r   p r o s e c u t i o n   or 
r e n e g o t i a t e   the  p l e a   bargain  agreement.  H e   contends  there  was  no 
n e w   evidence  and  the  rejection  o f   the  o r i g i n a l   p l e a   agreement  was 
based  s o l e l y   on 
i n f l u e n c e   exerted  upon  i t   by  m i l i t a r y  
members. 1 

the 

2 

97-0 163 1 

On 14 September 1993,  applicant's commander advised him that she 
was recommending him for a UOTHC discharge for his conviction of 
first degree burglary and sexual battery. After consulting with 
counsel, applicant initially requested a board hearing but  then 
submitted a conditional board waiver contingent upon his receipt 
of  a  general  discharge, which  was  denied.  His  application  to 
retire in lieu of discharge was returned to him. 

An  ADB was convened on 30 November 1993  to determine whether the 
applicant  should be  discharged prior  to  the  expiration of  his 
term of service because of a civilian conviction. Applicant could 
not attend due to his incarceration, but  he submitted a personal 
statement, and was represented at the board by counsel. The board 
recommended  applicant  be  give  an  UOTHC  discharge  without 
probation and rehabilitation. 

The H Q e A i r l i f t  Wing Staff Judge Advocate (JA) provided a legal 
review on 19  January 1994,  indicating that procedures had  been 
complied with and that the findings of the board were supported 
by  a preponderance of  the evidence record. Approval  of  a UOTHC 
discharge was recommended. The HQ *Airlift 
Wing commander also 
recommended approval. 

After  further  legal  review,  the e AF/JAC  recommended  on 

8 February 1994 that the board's findings and recommendations be 
approved.  The  15th  AF  commander  approved  the  findings  on 
9 February 1994. 

On 8 March  1994,  the HQ Air Mobility Command  (AMC) JA found the 
case  legally  sufficient  to  support  discharge  and  recommended 
applicant's request to retire in lieu of discharge be denied. 
On  25  December  1993,  applicant  requested  retirement  effective 
31 March 1994. On 22 December 1994,  the SAF, through the Office 
of  the  Secretary Personnel Council  (SAFPC), declined  to accept 
applicant's request for retirement. 

Applicant was  separated in the grade of  master  sergeant with a 
UOTHC discharge for misconduct on 20 September 1995 and given an 
RE code of Il2B.I'  His DD Form 214  was administratively corrected 
to reflect that, due to his lost time  (5 Feb 93 thru 12 Sep 95) , 
he  had  20 years, 9  months and  1  day of  active  service, rather 
than 23 years, 4 months, and 9 days. 

AIR FORCE EVALUATION: 

The Retirements Branch at HQ AFPC/DPPRR  reviewed this appeal and 
states  that  the  recommendation  by  applicant's  commander  for 
discharge for civilian conviction was found legally sufficient. 
Applicant  was  afforded to opportunity to request  retirement in 
lieu  of  the  UOTHC  discharge.  The  SAF  declined  to  accept 
applicant's application for retirement. There are no provisions 

3 

97-0 163 1 

to allow payment  of  retired pay  unless  the member  has met  all 
requirements to receive such pay.  The governing law for enlisted 
retirements  (Title 10,  USC, Section 8914,  states that  'I.  .  .  an 
enlisted member of  the Air Force who has at  least 20,  but  less 
than  30, years of  service computed under  Section  8925  of  this 
title may, upon his request, be retired." Applicant's request for 
retirement in lieu of discharge was denied by competent authority 
(the SAF). As there are no errors or irregularities, the author 
recommends denial. 

A copy of the complete Air Force evaluation, with attachments, is 
at Exhibit C. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Counsel rebutted, indicating that the evaluation is nothing other 
than  a  bald  and  unsupported opinion  that  the  relief  requested 
should be denied. There is no response whatsoever to the legal, 
factual and equitable arguments put  forth by the applicant. Even 
with  applicant's lost  time,  he  had  in  excess  of  2 0   years  of 
honorable service which qualifies him for retirement. 

A copy of counsel's complete response is at Exhibit E. 

ADDITIONAL AIR FORCE EVALUATION: 

The  Senior Attorney-Advisor, HQ AFPC/JA,  evaluated  this  appeal 
and  summarizes that  review of  applicant's civilian  convictions 
and  resulting discharge and denial of  retirement  fails to show 
applicant was unjustly or improperly treated. Applicant's loss of 
retirement  was  an  administrative  consequence  of  his  criminal 
misconduct and was not additional punishment for his crimes.  The 
SAF's decision  to  deny  him  a  military  retirement  is  entirely 
appropriate.  The appeal should be denied in its entirety. 
A copy of the complete additional evaluation is at Exhibit F. 

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE  EVALUATION: 
Counsel  reviewed the  additional evaluation and  found  it  rather 
adversarial.  He  provides  a  five-page  rationale  for  why  he 
believes the Board should disregard the advisory opinion of  the 
Senior Attorney Advisory. The  applicant has paid  the price  for 
his alleged misconduct.  A lifetime forfeiture is not warranted 
in a  situation in which  the  civilian court  system has  already 
punished him. 

4 

97-0 163 1 

. 

A copy of counsel's complete response is at Exhibit H. 

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 probable error or injustice. After a 
thorough  review  of  the  evidence  of  record  and  applicant's 
submission, we are not persuaded that his UOTHC discharge should 
be  changed to an LOS retirement. Counsel's numerous contentions 
made in behalf of his client were duly considered; however, we do 
not  find these  assertions, in  and  by  themselves, sufficiently 
persuasive to override the rationale provided by  the Air  Force. 
Counsel's citing of  the  Greaves  case  is  not  applicable  to  the 
instant  appeal.  It  appears  from  both  the  applicant's  own 
statement to the ADB  and  the ADB  transcript that  the board  was 
fully cognizant of applicant's more than 20  years of service, his 
retirement eligibility, and his desire to retire. However, it is 
not within an ADB's purview to determine whether or not a member 
will  be  allowed  to  retire. An  ADB  is merely  an  administrative 
procedure to determine if a member's employment by the Air Force 
should  be  continued  and,  if  not,  the  character  of  discharge. 
There is no "sentencing portion'' in an ADB. Following an ADB, the 
application  for  retirement of  a  retirement-eligible member  can 
only be  rejected within the Secretariat. Congress empowered the 
service secretaries to decide whether a member's service warrants 
the award of a military retirement. Under the applicable law, the 
only entitlement a military member with a minimum of 20 but less 
than 30 years of  service has with respect to retirement is the 
opportunity  to  request  to  be  retired.  Applicant's  loss  of 
retirement  was  not  ''punishment; I'  it  was  the  administrative 
consequence  of  his  egregious  misconduct.  Counsel's  and 
applicant's contentions that the Air Force's "interference" with 
his plea bargaining was inappropriate and that the SAF's decision 
to  deny  his  application  for  retirement  was  based  on 
incomplete/erroneous information have  not  been  substantiated by 
the available evidence. These and the re'maining issues have been 
sufficiently addressed by the Air Force evaluations. 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. 

4.  The documentation provided with this case was  sufficient to 
give the Board a clear understanding of the issues involved and a 
personal  appearance, with  or  without  legal  counsel, would  not 

5 

97-0 163 I 

have  materially  added  to  that  understanding.  Therefore,  the 
request for a hearing is not favorably considered. 

THE BOARD DETERMINES THAT: 

The  applicant be  notified  that  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 14 July 1998,  under the provisions of AFI 
36-2603 : 

Ms. Patricia J. Zarodkiewicz, Panel Chair 
Mr. Loren S. Perlstein, Member 
Mr. Dana J. Gilmour, Member 

The following documentary evidence was considered: 

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

DD Form 149, dated 19 May 97, w/atchs. 
Applicant's Master Personnel Records. 
Letter, HQ AFPC/DPPRR, dated 23 Sep 97, w/atchs. 
Letter, AFBCMR, dated 13 Oct 97. 
Letter, Counsel, dated 17 Dec 97. 
Letter, HQ AFPC/JA, dated 31 Mar 98. 
Letter, AFBCMR, dated 20 Apr 98. 
Letter, Counsel, dated 28 May 98. 

P PJZ+ 

Panel C h a i u  

TRICIA J  ARODKIE  CZ ' 

J 

6 

97-0 163 1