ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 97-02443
INDEX CODE: 136.00
COUNSEL: RONALD P. KELLER
HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
The Dropped from the Rolls (DFR) action be rescinded and he be retired
in the grade of lieutenant colonel.
_________________________________________________________________
RESUME OF THE CASE:
The applicant is a former lieutenant colonel who was dropped from
rolls as a regular officer by order of the Secretary of the Air Force,
on 24 Feb 97, as a result of his plea of guilty to two counts of gross
sexual imposition with a person under 13; one count of attempted rape
with a person under 13; and two counts of sexual battery. He had
served 22 years on active duty.
On 11 Aug 98, the Board considered and denied an application for
correction of military records pertaining to the applicant, in which
he requested that the DFR action be rescinded and he be retired in the
grade of lieutenant colonel (see AFBCMR 97-02433, with Exhibits A
through D).
_________________________________________________________________
APPLICANT CONTENDS THAT:
Counsel indicated that the applicant’s package is being resubmitted
because it appears that the Board place great weight on the fact that
he did not respond to the advisory opinions. Counsel stated that the
initial package rebutted the advisory opinions, therefore, there was
no need to restate what was painstakingly stated in the initial
appeal.
Counsel indicated that there was a lack of due process in a DFR
action. It is there position that once a retirement application was
submitted, the DFR action should have been suspended, and no action
taken on that matter, until such time as the retirement application
had either been approved or denied.
Counsel stated that the letter provided by the applicant’s therapist
indicating that he suffers from post-traumatic stress disorder caused
by a plane crash, while not a defense to the charges, should be
considered in mitigation.
A complete copy of the applicant’s request for reconsideration,
including the letter from his therapist, is at Exhibit E.
_________________________________________________________________
THE BOARD CONCLUDES THAT:
1. In earlier findings, the Board determined that there was
insufficient evidence to warrant any corrective action regarding the
applicant’s request that the DFR action be rescinded and he be retired
in the grade of lieutenant colonel. The applicant’s most recent
submission has been reviewed and a majority of the Board finds the
evidence provided insufficient to warrant a reversal of the Board’s
previous determination in this case. The evidence of record reveals
that the applicant was dropped from the rolls by the Secretary of the
Air Force as a result of his plea of guilty to two counts of gross
sexual imposition with a person under 13; one count of attempted rape
with a person under 13; and two counts of sexual battery. No evidence
has been presented which shows to the Board majority’s satisfaction
that the DFR action was improper or contrary to the provisions of the
prevailing Air Force Instruction under which it was effected.
Therefore, in the absence of clear-cut evidence that the applicant’s
substantial rights were violated, that the information contained in
the DFR case file was erroneous, or that their was an abuse of
Secretarial authority, a majority of the Board adheres to the original
decision and concludes that no basis exists to act favorably on the
applicant’s request that the DFR action be rescinded and he be retired
in the grade of lieutenant colonel.
2. The applicant's case is adequately documented and it has not been
shown that a personal appearance with or without counsel will
materially add to our understanding of the issues involved.
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 4 Oct 99, under the provisions of AFI 36-2603:
Mr. Douglas J. Heady, Panel Chair
Mr. Joseph G. Diamond, Member
Mr. Henry Romo, Jr., Member
A majority of the Board found the applicant’s submission to be new and
relevant. However, the Board majority voted to deny the applicant’s
request. Mr. Heady found the applicant’s submission to be new but not
relevant to warrant a revision of the Board’s original decision.
Accordingly, Mr. Heady voted to deny the request for reconsideration.
The following additional documentary evidence was considered:
Exhibit E. DD Form 149, dated 3 May 99, w/atchs.
DOUGLAS J. HEADY
Panel Chair
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