RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-01364
            INDEX CODE:  129.00

            COUNSEL:  GREG D. MCCORMACK

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The  findings  and  recommendations   of   the   Administrative
Discharge Board, which was held  on  8-10  December  1998,  be  set
aside;

2.  His discharge from the Air Force for reasons of  misconduct  be
set aside;

3.  He be retired, effective 1 February 1998; and,

4.  He be  reimbursed  for  all  retirement  income  and  benefits,
retroactive to 1 February 1998.

By letter dated 11  September  2000,  counsel  requested  that  the
results  of  the  Administrative  Discharge  Board  be  set  aside;
reinstatement in the Air Force,  and  thereafter,  retirement;  and
payment of all lost pay and benefits suffered as a  result  of  the
administrative discharge.

By letter dated  27  December  2000,  counsel  requested  that  the
Administrative  Discharge  Board  proceedings  be  set  aside;  and
retirement; or, in the alternative, the opportunity to present  the
case  before  a  new  Administrative  Discharge  Board,  who  shall
consider only the evidence properly before it, not the  proceedings
in federal court, which have been  determined  to  be  invalid  and
void.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was improperly subjected to an administrative separation  action
for misconduct, which resulted in his separation from the Air Force
on 3 August 1999, for misconduct with a discharge  characterization
of under other than honorable conditions.   As  a  result,  he  was
improperly denied retirement income and benefits, which he  earned,
having served in excess of 22 years  of  faithful  service  to  his
country.

He had never been subjected to any adverse personnel actions  until
his administrative discharge for misconduct.  Pursuant  to  federal
law, he was eligible to retire at the 20-year point  of  continuous
active duty.  During that period, his service  was  exemplary.   He
did not retire at that point, despite the fact he had fully  earned
his retirement benefits.  He continued to  devote  himself  to  his
service without any improper conduct  until  the  subject  offenses
occurred in June 1997, at which time he had in excess of  22  years
of outstanding service.

The offenses of which he was convicted evolved out of  a  financial
investment program that he became involved with in good faith.   He
had no idea or any  reason  to  suspect  that  there  was  anything
illegal in what he was doing.

He realizes that the decision of the Secretary of the Air Force  to
grant  retirement  is  discretionary;  however,   the   facts   and
circumstances related to his excellent service support his  request
for retirement.

The complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered on active duty on 23 May 1975, in  the  grade
of E-1.  He  was  progressively  promoted  to  the  grade  of  E-8,
effective 1 November 1991.

From 23 May 1975 through 2 May 1997, the applicant had a  total  of
28 performance reports:  19 Airman Performance Reports (APRs), with
overall 9 ratings, and 1 Letter of Evaluation (LOE); and 8 Enlisted
Performance Reports (EPRs), with overall 5 ratings.  He received  a
referral report for the period 3 May 1997 through 30 June 1998.

On 27 May 1998, the applicant pled guilty to 9 counts of failing to
register the sale of a  security  with  the  Georgia  Secretary  of
State.  On 22 October  1998,  he  was  sentenced  to  21 months  in
federal prison.

On 23 October 1998, the applicant  was  notified  of  the  proposed
discharge.  He consulted counsel and elected to present his case to
an Administrative Discharge Board.  The hearing was  held  on  8-10
December 1998.  On 10 December 1998, a board of officers found that
the applicant had been convicted of the civil offense of failing to
register a security with the Georgia Secretary of State;  that  the
sentence by civilian authorities included confinement for 6  months
or more without regard to suspension or probation; that he did,  at
or near Robins  Air  Force  Base,  Georgia,  on  divers  occasions,
between on or about 1 June 1997 and on or about 1  September  1997,
violate a lawful general regulation, to wit:  paragraph 5-409, DoDD
5500.7-R, the Joint Ethics Regulation, by knowingly soliciting  DoD
personnel who were junior in rank, grade or position;  and  that  a
punitive discharge would be authorized for the same  or  a  closely
related offense under the  Manual  for  Courts-Martial  (MCM).   As
such, he was subject to discharge under the provisions of  AFI  36-
3208, paragraph 5.51.1  (civilian  conviction)  and  5.52.3  (other
serious offense).  The board recommended discharge  with  an  under
other  than  honorable  conditions  (UOTHC)   characterization   of
service.

Prior to the discharge proceedings, the applicant had  an  approved
retirement date of 1  February  1998.   On  16  November  1998,  he
requested retirement on 1 January 1999, in lieu of discharge.

On 16 July 1999, the Secretary of the Air Force, acting through the
Director,  Air  Force  Review  Boards   Agency,   disapproved   the
application submitted on 1 October 1997, for retirement effective 1
February 1998.

On 3 August 1999, the applicant was  discharged  under  other  than
honorable conditions by reason of misconduct.  He served  24 years,
2 months and 11 days on active duty.

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 EVALUATIONS:

The Separations Branch, HQ AFPC/DPPRS, recommended  denial  stating
that the discharge was consistent with procedural  and  substantive
requirements  of  the  discharge  regulation  and  was  within  the
discretion of the discharge authority.  The applicant was  provided
full administrative due process.  Records indicate the  applicant’s
military service was properly reviewed and appropriate  action  was
taken.  A complete copy of the evaluation is at Exhibit C.

The Special Programs Section, AFPC/DPPRRP, addressed the retirement
processing issues of the case.  On 10 October 1997, the applicant’s
application for retirement was approved, with an effective date  of
1 February 1998.  On 26 January 1998, the applicant was  placed  on
administrative hold, based on an investigation being  conducted  by
the Air  Force  Office  of  Special  Investigations  (AFOSI).   His
approved  retirement  was  suspended.   On  30  January  1998,  his
approved  retirement  was  rescinded.   On  23 October  1998,   the
commander notified the applicant that he  was  recommending  he  be
discharged for misconduct.  On  16  November  1998,  the  applicant
submitted an application for retirement in lieu of discharge,  with
an effective date of 1 January 1999.  On 10 December 1998, a  board
of officers found that the applicant was subject to  discharge  for
civil conviction and other serious offenses and recommended  he  be
discharged with an  UOTHC  discharge.   On  26 February  1999,  the
discharge authority approved the recommendation for  discharge  and
recommended that the Secretary of  the  Air  Force  disapprove  the
applicant’s request to retire in lieu of  discharge.   On  16  July
1999, the Secretary of the Air Force  disapproved  the  applicant’s
application  for  retirement  and  directed  that  the  involuntary
separation be executed.  Under Section 8914,  Title  10,  USC,  the
Secretary has the  right  to  approve  or  disapprove  an  enlisted
member’s retirement request.  Additionally,  AFI  36-3203,  Service
Retirements, provides guidance for  the  submission  of  retirement
requests and Table 2.2 addresses restrictions  to  retirement  that
may be waived.  AFPC/DPPRRP recommended denial.

A complete copy of the evaluation, with attachments, is at  Exhibit
D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

Copies of the evaluations were  forwarded  to  counsel  on  21 July
2000, for review and response within 30 days (Exhibit E).   Counsel
stated he was in the process of obtaining a certified copy  of  the
Order and Judgment of the  United  States  District  Court  of  the
Middle District of Georgia.  He provided an uncertified copy,  and,
pursuant to the order, the Court granted the applicant’s motion  to
vacate the sentence on the grounds that  he  was  denied  effective
assistance of counsel at  trial.   Given  that  the  administrative
separation action was based  on  the  civilian  conviction,  it  is
counsel’s position that the fact that the sentence was  vacated  in
its  entirety  must  result  in  the  immediate  granting  of   the
application.  Counsel requested immediate action be  taken  to  set
aside the results of the Administrative Discharge Board;  that  his
client be immediately reinstated in  the  air  Force;  that  he  be
permitted to retire; and that he be granted payment of all lost pay
and benefits that he suffered as a result of  the  adverse  action.
Counsel’s complete response, with attachment, is  at  Exhibit  F-1.
In a separate submission, counsel provided a certified copy of  the
Judgment of the Court, which is at Exhibit F-2.

Upon receipt of the certified copy  of  the  judgment,  the  AFBCMR
staff requested an additional advisory opinion (Exhibit G).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The Chief, General Law Division, HQ USAF/JAG,  recommended  denial,
stating that the claim is without  merit.   Pursuant  to  his  plea
agreement, the applicant was convicted of 9 counts of selling joint
ventures  (securities)  in   “Joe’s   Millionaire   Club”   without
registering the securities as required by federal and  state  laws.
He was sentenced to 21 months in federal prison, a $900  assessment
fee, and 2 years of supervision upon release.

Evidence presented at the discharge board showed that approximately
286 individuals invested from $1,000  to  $200,000  each  with  the
applicant, having been led by him to believe they would  receive  a
guaranteed 10% return on their investment, with the possibility  of
earning  $1  million  in  a  year.   The  total  monetary  loss  to
individuals attributable to the applicant’s crimes  and  misconduct
was in excess of $800,000.

The applicant was sentenced to confinement for 21 months,  but  the
sentence was vacated by the court upon the applicant’s motion  that
his conviction was obtained in violation of his  right  to  counsel
under the Sixth Amendment.  The applicant’s civilian  sentence  was
vacated, but his conviction still stands.  Even  though  he  is  no
longer subject to a sentence of 6  months  or  more,  AFI  36-3208,
paragraph 5.51.1, authorizes an administrative discharge  based  on
conviction by civilian authorities when a punitive discharge  would
be authorized for the same or a closely related offense  under  the
MCM.  In this case, the MCM would authorize  a  punitive  discharge
both for the same offense  (the  Assimilative  Crimes  Act)  and  a
closely related offense (larceny by  false  pretense,  Article 121,
UCMJ).  Further, even without the civilian  offense,  AFI  36-3208,
paragraph 5.52.3 provides an appropriate basis  for  discharge.   A
complete copy of the evaluation is at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel stated that, in the applicant’s collateral  attack  of  the
conviction, he regrettably only sought to  have  his  sentence  set
aside and vacated--he did not ask that the underlying conviction be
set aside and vacated.  Since it is clear  that  the  sentence  was
vacated by reason of the invalid waiver of  counsel,  resulting  in
the plea of guilty being  rendered  invalid,  then  the  conviction
itself must be considered null and void.  He asks how the Air Force
can contend that the conviction is valid  and  enforceable  against
the applicant in an  administrative  discharge  proceeding  if  the
appellate review of the case unambiguously ruled  that  the  guilty
plea itself was invalid due to ineffective assistance of counsel?

Once the civilian conviction is taken out of the  proceedings,  all
exhibits related to the conviction must be removed from the record.
 Having removed the records related to the civilian conviction from
the  proceedings,  then  the  inquiry  must  be  confined  to   the
allegation  of  misconduct.   The  sole  remaining  basis  for  the
discharge action then is  that  the  applicant  violated  a  lawful
general regulation, Section 5-409 of the Joint  Ethics  Regulation,
by knowingly soliciting DoD personnel, junior  in  rank,  grade  or
position.  The Air Force did not allege that his  client  committed
larceny by false pretenses as referenced in the advisory opinion.

If the conclusion of this review process is that  the  evidence  is
insufficient to support a determination that the  applicant  should
be retained in the Air Force, the applicant should be permitted  to
present his case before a new Administrative Discharge  Board,  for
consideration of the evidence without any reference to the plea  of
guilty, the conviction and the sentence to confinement.

Counsel’s complete response, with attachment, is at Exhibit J.

In separate submissions, counsel provided a copy of the  Motion  to
Vacate  the  conviction  and  copies  of  the  Order  vacating  the
conviction (Exhibits K-1, K-2, and L).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

In their previous opinion, the General Law Division,  HQ  USAF/JAG,
explained that even without a civilian conviction, the other reason
for discharge, Commission of a Serious Offense, was  sufficient  by
itself  to  justify  a  discharge  under   other   than   honorable
conditions.  They noted that the applicant’s DD Form 214, Blocks 26
and 28, lists “Commission of a Serious Offense” as the  reason  for
discharge, not the civilian conviction.   Therefore,  there  is  no
error or injustice to be corrected as to the reason for discharge.

HQ USAF/JAG also advised that the Board does have the authority  to
order a new discharge board.  However, because the  original  board
found that the applicant committed  a  serious  offense,  the  only
issue for a new board would be whether to recommend  the  applicant
be discharged solely on the basis of the commission  of  a  serious
offense.  It would be up to the  Secretary  to  decide  whether  to
discharge  or  retire  the  applicant.   A  complete  copy  of  the
evaluation is at Exhibit M.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reiterated his belief that the only proper course of action
in this case is to order a new discharge board.  If  the  Secretary
of the Air Force considers the case at this point,  and  the  Board
does not order a new proceeding, the Secretary’s  action  would  be
based on misinformation.  Counsel’s complete response is at Exhibit
O.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided  by  existing
law or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to  demonstrate
the  existence  of  probable  error  or  injustice  warranting  the
applicant’s reinstatement to active duty.   In  this  respect,  the
majority of the Board notes the following:

      a.  On 10 December 1998, an  Administrative  Discharge  Board
(ADB) found the applicant had been convicted of a civil offense for
failing to register a security with the Georgia Secretary of  State
and that he violated a lawful general regulation by soliciting  DoD
personnel who were junior in rank,  grade  or  position.   The  ADB
recommended that the applicant be discharged with  an  under  other
than honorable conditions (UOTHC) characterization of service.  The
applicant’s  request  to  be  retired  in  lieu  of  discharge  was
considered and disapproved by the Secretary of the Air Force.  On 3
August 1999, the applicant was discharged under the  provisions  of
AFI 36-3208 (Misconduct).

      b.  On 2 August 2000, the United States  District  Court  for
the District of Georgia vacated the applicant’s sentence and on  23
January 2001, the court vacated his conviction.

      c.  Based on the court’s decision, the applicant now requests
that the ADB findings and recommendation be  set  aside;  that  his
discharge for misconduct be set  aside;  and  that  he  be  retired
effective 1 February 1998.  In response to the applicant’s  appeal,
the Chief, General Law Division, in his advisory  of  6 June  2001,
states that even without a civilian conviction,  the  other  reason
for discharge, Commission of a Serious Offense,  is  sufficient  by
itself to justify a UOTHC discharge.  In  this  regard,  they  note
that the  applicant’s  DD  Form  214  (Certificate  of  Release  or
Discharge from Active Duty), lists  this  as  the  reason  for  his
discharge and  not  the  civilian  conviction.   Accordingly,  they
believe that there is no error or injustice to be corrected  as  to
the reason for the applicant’s discharge.

      d.  After reviewing the evidence of record  and  noting  that
the applicant’s civil conviction has been vacated, the majority  of
the Board is not certain what action the Air Force would have taken
at that time.  In addition, we note that  the  applicant’s  request
for retirement in lieu of discharge was  based,  in  part,  on  his
civil conviction.  The applicant has requested, as  an  alternative
relief, that he be provided an  opportunity  to  present  his  case
before a new ADB.  However, we  do  not  believe  that  this  Board
should  direct  the  Air  Force  to  do   so.    We   believe   our
responsibility in this type of case is to determine whether or  not
the ADB that was convened was proper and held  in  accordance  with
the applicable Air Force instructions.  Since  the  ADB  considered
the applicant’s civil conviction, we believe that the ADB should be
set aside and removed from the applicant’s  records.   In  view  of
this determination, his separation from the Air Force  also  should
be declared void.  We believe, based on the circumstances  of  this
case, that our recommendation is justified.  The applicant will  be
returned to active duty and the Air Force can  determine,  at  that
time,   whether   or   not   the   applicant’s   conduct   warrants
administrative discharge action.  If an ADB convenes and recommends
that the applicant be discharged, he can submit an application  for
retirement in lieu of discharge and his request will be  considered
by the proper authority.

4.  Normally, in cases involving reinstatement of enlisted members,
this Board would direct a constructive reenlistment.   However,  to
avoid precluding the Air Force from taking administrative discharge
action against the applicant, if they determine  it  necessary,  we
believe that an extension to his 23 May 1995  reenlistment  is  the
proper action to take under the existing circumstances.

5.  Insufficient  relevant   evidence   has   been   presented   to
demonstrate the existence of probable error or injustice warranting
the applicant’s retirement effective 1 February 1998.  As indicated
above, we do not  know  whether  or  not  administrative  discharge
action would have been initiated  against  the  applicant  had  his
civil conviction not been a matter of record.   Therefore,  whether
or not the applicant is allowed to retire is a decision that should
be made by the Air Force.  Accordingly, we find no basis upon which
to recommend favorable action on this part of his application.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the  Air  Force
relating to APPLICANT, be corrected to show that:

       a.  All  documents  and  references  to  the  Administrative
Discharge Board (ADB), convened under the  provisions  of  AFI  36-
3208, at Robins AFB, GA, on 8-10 December 1998,  be  declared  void
and removed from his records.

      b.  On 3 August 1999, he was  not  discharged,  but  on  that
date, he was ordered permanent change of station (PCS) to his  home
of record/home of selection pending further orders.

      c.  On 4 August 1999, his request for a 24-month extension on
his 23 May 1995 enlistment was approved by competent authority.

_________________________________________________________________

The following members of the Board considered this  application  in
Executive Session on 16 August 2001, under the provisions of AFI 36-
2603:

                 Mr. Thomas S. Markiewicz, Vice Chair
                 Ms. Peggy E. Gordon, Member
                 Mr. Frederick R. Beaman, III, Member

A  majority  of  the  Board  voted  to  correct  the   record,   as
recommended.  Ms. Gordon voted to  deny  the  application  and  has
submitted a Minority Report, which is at Exhibit P.  The  following
documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 25 April 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRS, dated 7 June 00.
     Exhibit D.  Letter, AFPC/DPPRRP, dated 6 July 00, w/atchs.
     Exhibit E.  Letter, SAF/MIBR, dated 21 July 00.
     Exhibit F.  Letters, Counsel, dated 11 & 28 Sep 00, w/atchs.
     Exhibit G.  Letter, AFBCMR, dated 4 October 00.
     Exhibit H.  Letter, AF/JAG, dated 6 November 00.
     Exhibit I.  Letter, AFBCMR, dated 13 November 00.
     Exhibit J.  Letter, Counsel, dated 27 December 00, w/atchs.
     Exhibit K.  Letters, Counsel, dated 26 January 01, w/atchs.
     Exhibit L.  Letter, Counsel, dated 30 January 01.
     Exhibit M.  Letter, AF/JAG, dated 6 June 01.
     Exhibit N.  Letter, AFBCMR, dated 13 June 01.
     Exhibit O.  Letter, Counsel, dated 20 June 01.
     Exhibit P.  Minority Report.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
             CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:

      The majority of the panel recommends the applicant be
retroactively reinstated to active duty in 1999.  The majority of the
Board believes that since the applicant’s civilian conviction was set
aside and the Administrative Discharge Board (ADB) based their
decision, in part, on his civilian conviction, he should be returned
active duty.  The majority also concluded that the Air Force, if they
desire, can convene another ADB once the applicant has returned to
active duty.  However, after thoroughly reviewing the evidence of
record, I do not agree with the majority of the panel and strongly
recommend applicant’s appeal be denied.


      I note that a board of officers found the applicant had been
convicted by a civilian court and had committed other serious offenses
by violating a general order by soliciting DoD personnel junior to him
in rank, grade, or position as alleged (emphasis added).  Evidence
presented at the discharge board showed that approximately 286
individuals invested from $1,000 to $200,000 each with the applicant,
having been led to believe by him that they would receive a guaranteed
10% return on their investment, with the possibility of earning $1
million in a year.  Evidence revealed that the applicant misled
potential investors into believing he had won substantial sums of
money in the Australian lottery and that he was using his own wealth
to guarantee investors against risk of loss.  With the exception of
four individuals, none of the investors was ever paid back.  The total
monetary loss to individuals attributable to the applicant’s crimes
and misconduct was in excess of $800,000.


      The Chief, General Law Division, in his advisory opinion, dated
6 November 2000, notes that even with the set aside of his civilian
conviction, a basis for discharge under AFI 36-3208, para 5.51.1,
still lies, because a punitive discharge would be authorized for the
same or a closely related offense under the Manual for Courts Martial
(MCM).  The offenses with which the applicant was charged are closely
related to an offense under the MCM -- larceny by false pretense,
Article l12, Uniform Code of Military Justice (UCMJ).  When the amount
taken by false pretense is over $100, the UCMJ authorizes a Bad
Conduct or Dishonorable Discharge (as well as confinement for up to 5
years and total forfeiture of all pay and allowances).  The amount
taken by the applicant exceeds the MCM’s minimum amount to authorize a
punitive discharge for this offense by some $799,000.  The Chief,
General Law Division, also notes that the second basis for the
applicant’s discharge is “Other Serious Offenses” under AFI 36-3208,
paragraph 5.52.3.  The discharge board found that the applicant
violated a lawful general regulation by knowingly soliciting DoD
personnel junior in rank, grade or position to himself and this
finding alone would support his discharge as well as the Under Other
than Honorable Conditions Discharge (UOTHC) characterization.  Based
on their review of the evidence of record, the Chief, General Law
Division, believes the applicant’s claim is without merit and his
request should be denied.


      I completely agree with the comments and recommendation made by
the Chief, General Law Division.  As a senior Noncommissioned Officer
with over 24 years of service, I find the applicant’s actions totally
reprehensible and contrary to good order and discipline in the
military.  This is especially evident when considering that
approximately 286 individuals, to include personnel junior to him, his
close friends and members of his squadron, invested from $1,000 to
$200.000 each for a total monetary loss in excess of $800,000.  The
set aside of his civilian conviction in no way removes the serious
offenses committed by the applicant.  The applicant has benefited from
his conviction being set aside as he did not have to serve the 21
months in federal prison.  Applicant’s discharge and the denial of his
retirement are completely justified based on the evidence that has
been presented to this Board.


      In view of the above, I firmly believe that the relief requested
should be denied in its entirety as one of the two reasons for his
denial of retirement stands.  That is, even though his conviction and
sentence were vacated, he still committed “other serious offenses.”
However, if any relief is provided, I would suggest that a new ADB be
convened and their findings be provided to the AFBCMR.  The majority
of the panel, in my opinion, is providing the applicant with over two
years of active duty pay and allowances for which he never performed
any duties.  In addition, if the Air Force does conduct another ADB
and it is determined that he should be discharged, the pay and
allowances he receives after his return to active duty cannot be taken
from him.  Although I am in no way recommending that a new ADB be
convened, I believe that to approve the recommendation of the majority
of the panel, without convening another ADB, would provide relief to
the applicant that is totally unwarranted.








                                              PEGGY E. GORDON
                                              Member






AFBCMR 00-01364




MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to, be corrected to show:

            a.  On 3 August 1999, he was not discharged under other
than honorable conditions, but on that date, he continued to serve
on active duty.

            b.  On 31 August 1999, he was relieved from active duty
and on 1 September 1999, he was retired for length of service in
the grade of senior master sergeant (E-8).





            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency


                   MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE
                   BOARD FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

FROM: SAF/MRB

SUBJECT:    AFBCMR Case on

      I have carefully considered all the circumstances of this case,
including the recommendations of the minority and the majority members
of the panel.  The entire panel has reservations concerning the
propriety of permitting the applicant to retire for length of service
because of the egregiousness of the offenses committed against his
superiors and subordinates.  Nevertheless, it seems clear that the
evidence before the Administrative Discharge Board (ADB) and its
findings concerning the civilian conviction, and the “serious
misconduct” allegation were inextricably intertwined.  In particular,
the ADB had before it the applicant’s guilty plea and its accompanying
stipulation of fact, the latter directly relevant to the alleged
serious misconduct.  The District Court set aside the applicant’s
conviction on the basis that the guilty plea (and necessarily the
stipulation) were entered into without adequate advice of counsel.
Thus, the ADB’s findings were irretrievably tainted.  The majority of
the panel’s decision to set aside the discharge is entirely consistent
with (if not mandated by) the record in this case.  With all due
respect to the minority member, I don’t think denial of relief can be
sustained on this record.

      This leaves two options.  Either restore the applicant to active
duty to allow the command to initiate a new administrative discharge
proceeding, if they choose to (as the majority of the panel has
recommended), or simply retire him retroactively, as he initially
requested.  I know of no way to hold a new ADB without restoring the
applicant to active duty, entitling him to more than two years of back
pay and allowances, and I think that it is unlikely a new ADB would be
convened or, if it were, would again discharge him given the passage
of time and the fact the most damning evidence (the conviction and his
admissions in the stipulation) could not be used.

      Considering all of the circumstances in this case, I conclude
that granting the applicant’s request for retroactive retirement is in
the best interest of the Air Force.

                                       JOE G. LINEBERGER
                                       Director
                                       Air Force Review Boards Agency


Attachment:
Complete Case File