RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  00-03240
                       INDEX CODE 135.02  135.05
                       COUNSEL:  None

                       HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He be credited with additional points during  retirement/retention
(R/R) year of 31 May 82 to 30  May  83  and  a  satisfactory  year  of
service.

2.  His 2 Jan 90 general discharge from the Air Force Reserves (USAFR)
be upgraded to honorable.

3.  He be placed on the Retired Reserve List (RRL)  in  the  grade  of
master sergeant effective 2 Jan  90  with  20  years  of  satisfactory
service for retirement.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Had he known in 83 that his training with the Reserves would  be  held
up for months, he would have stayed at his old job with the OKANG. The
improper and unnecessary circumstances surrounding his  transfer  from
the Guard to the Reserve prevented his having a good year  of  service
from May 82 to May 83. If this had been a good  year,  he  would  have
been eligible for the RRL when he was considered  for  separation  [in
90] and his case would have been reviewed as a  retirement-in-lieu-of-
discharge case. He should not have been discharged [in 90] because the
circumstances whereby he was considered to have been  convicted  in  a
civilian court, and thus susceptible to an  administrative  discharge,
were not, in fact, tantamount to a  civilian  conviction.   He  was  a
victim of bad advice from  his  commander,  who  also  gave  erroneous
information regarding the matter to his chain of command. Finally, his
case is timely in view of his  appeals  to  the  Air  Force  Discharge
Review Board (AF/DRB) and his discovery of the bad year in 99.

His former counsel’s 4-page brief, with 10 attachments, is at  Exhibit
A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force  on  22  Jan  57  and,
after 8 years and 11 days of active duty, was honorably discharged  on
2 Feb 65.

He enlisted in the Oklahoma Air National Guard (OKANG) on 1 Aug 65 and
was honorably discharged on 1 Jan 66.

He reenlisted in the OKANG on 31 May 77.  Effective 10 Feb 83, he  was
honorably discharged from the OKANG and transferred to the  Air  Force
Reserve effective 11 Feb 83.  There are two  main  components  of  the
Ready Reserve: the Selected Reserve and the Individual  Ready  Reserve
(IRR). The applicant was initially erroneously placed in the Obligated
Reserve Section (ORS), part of the IRR. However, because  he  did  not
have a military service obligation, he was later  moved  to  the  Non-
obligated Non-participating Reserve Personnel  Section  (NNRPS),  also
part of the IRR.

In a letter dated 1 Apr 83, he was advised that his assignment to  the
AF Intelligence Reserve Program required a current Special  Background
Investigation.

On 15 Apr 83, he reenlisted in the grade of technical sergeant  (TSgt)
in  the  AF  Ready  Reserve  for  a  period  of  6  years.  After  his
reenlistment, he was reassigned on 26 May 83 from the Standby  Reserve
to an  individual  mobilization  augmentee  (IMA)  (Selected  Reserve)
position at HQ AFIS, Ft. Belvoir, VA. By letter dated 1 Jun 83, he was
advised his training was scheduled on 6-7 Aug 83. On  17  Sep  86,  he
reenlisted for a period of 6 more years.

In Dec  86,  the  applicant  was  arrested  and  charged  by  civilian
authorities with a sexual offense involving the 9-year-old daughter of
a woman living with him up to that  time.   The  applicant’s  security
clearances were suspended by the Air Force.  In Apr 88, he was given a
non-jury trial by stipulation in an Oklahoma court, at which  time  he
was placed on deferred probation with supervision for 4 years, ordered
to pay a $3,000 fine and $1,000 for a victims’ contribution fund,  and
ordered to stay away from the victim.

On 8 Mar 89, he was relieved  from  HQ  AF  Intelligence  Agency,  Ft.
Belvoir, and assigned to HQ ARPC.

On 20 Mar 89, HQ ARPC notified the  applicant  that  action  had  been
initiated to determine whether he should be discharged for a  civilian
conviction.  He elected to take his case to a discharge  board,  which
convened on 13 Jul 89.  The applicant was represented by counsel,  and
the OK Assistant District Attorney provided testimony  at  the  board.
The board found that, on 21 Apr 88, actions tantamount to findings  of
guilty for the crimes of
lewd molestation (two  counts)  and  attempted  forcible  sodomy  were
imposed  on  the  applicant  by  an  OK  District  Court.  The   board
recommended a general discharge from the USAFR.  On 15 Aug 89, a legal
review by HQ ARPC/JA recommended approval of the board’s findings  and
recommendations.

A 31 Jul 89  ANG/Reserve  Point  Credit  Summary,  included  with  the
applicant’s submission at Exhibit A, reflects that R/R 30 May  83  was
not a satisfactory year of service  due  to  insufficient  points  (44
instead of the necessary 50).

Before final action,  the  applicant  and  his  counsel  made  written
comments and requested retention. On 7 Dec 89, after the Secretary  of
the Air Force Personnel Council (SAFPC) had considered the  case,  the
SAF  denied  lengthy  service  probation  and  directed  the  approved
administrative discharge be executed.

The applicant was discharged from the USAFR in  the  grade  of  master
sergeant with a general characterization of service on 2 Jan 90.

On 14 Nov 91, the applicant requested the AF  Discharge  Review  Board
(AF/DRB) upgrade his discharge to honorable. However, his request  was
denied on 19 Dec 91.  On  8  Apr  93,  the  applicant  testified  with
counsel in a personal appearance before the  AF/DRB,  but  his  second
request for an honorable discharge was again denied on 19 May 93.

On 16 Mar 94, the applicant requested a point summary for  retirement.
A  26  Apr  94  National  Archives  and  Records  Administration  form
indicates that a copy of his military personnel records was  forwarded
to the address he provided.

The applicant’s  military  personnel  records,  to  include  documents
pertaining to  the  administrative  discharge  board  and  the  AF/DRB
appeals, are provided at Exhibit B.

_________________________________________________________________

AIR FORCE EVALUATION:

The Staff Judge Advocate (SJA), HQ ARPC/JA,  indicated  the  following
with regard to the applicant’s general discharge:

            Applying the standards of AFR 35-41, Vol III, Para.  5-50d
(30 Sep 82) to the applicant’s case establishes  there  was  a  proper
basis for his general discharge.  Under  the  pertinent  paragraph,  a
member may be discharged for a civilian conviction, or action which is
tantamount to a finding of guilty, when the specific circumstances  of
the offense warrant separation, and:

                 (1) A punitive discharge would be authorized for  the
same or closely related offense under the Manual  for  Courts-Martial;
or

                 (2) The sentence  by  civilian  authorities  includes
confinement for 6 months or more,  without  regard  to  suspension  or
probation; or

                 (3) The offense involved moral turpitude.

            Although only one of the above requirements must be met to
satisfy paragraph 5-50(d), the applicant’s case met all three.  The OK
court action was  “tantamount  to  a  finding  of  guilty”  under  the
standard in AFR 35-41, which definition is the same  as  that  in  the
Reserve separation instruction (AFI 36-3209, paragraph 3.21.4.1).  The
OK court  proceeded  in  a  manner  that  was  inconsistent  with  any
reasonable hypothesis other than assumed guilt.  While the  punishment
imposed by the court was much less than the maximum allowed, the  only
reasonable interpretation of the OK judge’s decision is that he  found
the applicant committed the three offenses and imposed what he  deemed
an appropriate punishment for those offenses. The  OK  court’s  action
was precisely what is meant by the term “tantamount to  a  finding  of
guilty” in AFR 35-41. The applicant was properly discharged  and  none
of the evidence shows his commander gave him  bad  advice  or  the  AF
failed to provide him due process.

The SJA indicated the following with regard to the applicant’s request
for 30 additional points:

            The applicant chose to resign from the  OKANG  during  the
middle of his R/R year. If he had waited two or three months, he could
have earned sufficient points for a satisfactory year. His last  drill
with the ANG was on 21 Dec 82. Since he was  not  transferred  to  the
USAFR until 11 Feb 83, he  could  have  earned  additional  points  by
attending Jan and Feb ANG drills.  The applicant has not produced  any
documents or other evidence showing that anyone in  authority  advised
him that he would immediately begin training, after discharge from the
ANG, with a Reserve unit. While he did require a weight  check  and  a
security  clearance  update  from  HQ  AFIS,  the  evidence  does  not
establish that those actions significantly delayed  his  participating
in the Reserves.  It appears that his 83 transfer from the ANG to  the
IMA program was done correctly; his military record does not  disclose
any unusual delays in the transfer. Contrary to  counsel’s  contention
of a “conflict”  with  regard  to  the  applicant’s  military  service
indicated in the AF/DRB synopsis, there is no conflict.  Some  of  the
applicant’s military service did not qualify as  satisfactory  service
for  retirement.  HQ  ARPC/DPPRA,  after  reviewing  the   applicant’s
records, determined  that  he  completed  21  years  and  14  days  of
honorable federal service, but only 19 years and 11 days of that  time
was satisfactory service creditable toward  retired  pay  eligibility.
Further, the applicant’s transfer from the ANG to the USAFR did comply
with Department of Defense Directive (DODD) 1205.5 (16 May  80).  Once
the applicant was transferred to the IRR, it was up to him to find  an
IMA  position  in  the  Selected  Reserve  and  meet   the   necessary
requirements for the position.  When he was transferred to the IRR  on
11 Feb 83, there was no interruption of his total military service. He
was immediately placed in the Ready Reserve, but not immediately in an
IMA position. There’s no evidence anyone  promised  the  applicant  he
could leave the ANG on 10 Feb 83 and start training as an  IMA  on  11
Feb 83.  He controlled how many points he earned in the OKANG, when he
would leave the ANG, and was responsible for  finding  and  qualifying
for an IMA position.

The SJA concludes that the applicant’s requests should be denied.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant’s counsel on 23 Feb 01 for  review  and  comment  within  30
days.  On 22 Mar 01,  the  applicant  requested  that  his  appeal  be
temporarily withdrawn; therefore, his case was administratively closed
on 29 Mar 01.

In a rebuttal package received on 18 Sep 02, the  applicant  requested
that his case be reopened and advised that he no longer  had  counsel.
He claimed the woman he lived with at the time and who did  the  books
for his newspaper advertising agency was  embezzling  money  from  the
company. When he ordered her and her children out of  his  house,  she
had her daughter make various sexual child abuse  allegations  against
him. All records of the court’s action  are  now  expunged.  He  never
entered pleas of guilty or “no contest”; there  was  neither  judgment
nor finding of guilt; and  he  was  never  sentenced  to  “four  years
deferred confinement” but was placed on probation for a period of four
years. The ARPC position is not the “only  reasonable  interpretation”
of the judge’s decision. If the judge believed he was guilty “beyond a
reasonable doubt” as the Air Force has stated, he would not have  been
released at all. There is no basis at all for the  discharge  at  this
point in time as the case for which he was fined and put on  probation
no longer exists. The only reason he elected the stipulated trial  was
because he was repeatedly assured the results would have no impact  on
his Air Force career. He acted in good faith to clear up the matter as
quickly as possible. Additionally, he did try to “control” his  points
to earn a good year of service. He could have and would have stayed in
the Guard and easily have earned the points needed for  a  good  year,
but he was told he would be transitioned “almost  immediately”  to  an
IMA. He was denied the secretarial review to  which  an  NCO  with  20
years of service was required to have.

Applicant’s complete rebuttal, with attachments, is at Exhibit G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.    The application was not timely filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.    Sufficient relevant evidence has been presented  to  demonstrate
the existence of error or injustice to warrant awarding six additional
points for a satisfactory R/R year ending 30 May 83. In  this  regard,
we find it reasonable that the applicant believed  his  training  with
the Reserves would commence shortly  after  he  transferred  from  the
OKANG.   It  is  reasonable  to  conclude  that,  had  he  known   his
participative status would have been delayed for so  many  months,  he
would have remained in his former  job  with  the  Guard  rather  than
transferring before the completion of an R/R year.  Even so, we wonder
along with the applicant why the Reserves could not have placed him in
a  participative  position  while  he  was  waiting  for  his  Special
Background Investigation to be  completed.  Given  the  fact  that  he
tended to earn significantly more than the minimum  amount  of  points
necessary for satisfactory years of service, we believe he would  have
easily earned the six points he currently lacks had his assignment not
been delayed or had he been allowed to participate in an  unclassified
position  while  awaiting  clearances.  Therefore,  we  recommend  the
applicant be credited  with  six  additional  nonpaid,  inactive  duty
training points for the R/R year ending 30 May 83, giving him 20 years
of satisfactory years of service. We also recommend he be  transferred
to the RRL effective 2 Jan 90, with entitlement to retired pay at  age
60.

4.     By  our  recommending  the  applicant  be  credited  with   six
additional points for the 30 May 83 R/R year and  transferred  to  the
RRL with 20 years of satisfactory  years  of  service,  the  discharge
issue essentially becomes moot.  The applicant accepted  the  non-jury
trial by stipulation, which placed  him  on  deferred  probation  with
supervision for four years, etc.  While  his  civilian  court  records
have since been expunged and he appears to believe the same should  be
done to his military records,  he  has  not  shown  that  the  service
documents pertaining to the civilian  charges  and  trial  stipulation
were in error at the time they were created.  When he  separated  from
the Reserves, the applicant was under probation and we find no  reason
to disturb these historical portions of his military personnel record.

5.    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  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT, be corrected to show that he was credited  with
an additional six (6) nonpaid inactive  duty  training  (IDT)  points,
resulting in a total of 50 total points for  the  Retirement/Retention
(R/R) year ending 30 May 1983, and that the R/R  year  ending  30  May
1983 is a satisfactory year of Federal Service; and that  he  was  not
discharged from the Air Force  Reserves  on  2  January  1990  with  a
general discharge but on that date  was  transferred  to  the  Retired
Reserve Section awaiting retired pay at age 60 under the provisions of
Title 10, USC, Section 12731.

_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session  on  17  October  and  6  November  2002  under  the
provisions of AFI 36-2603:

                 Mr. Jackson A. Hauslein, Jr., Panel Chair
                 Ms. Dorothy P. Loeb, Member
                 Ms. Rita S. Looney, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence relating to AFBCMR  Docket  Number  00-
03240 was considered:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 5 Dec 00, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ ARPC/JA, dated 8 Feb 01, w/atchs.
   Exhibit D.  Letter, SAF/MIBR, dated 23 Feb 01.
   Exhibit E.  Letter, Applicant, dated 22 Mar 01.
   Exhibit F.  Letter, AFBCMR, dated 29 Mar 01.
   Exhibit G.  Letter, Applicant, undated (received 18 Sep 02),
                                       w/atchs.




                                   JACKSON A. HAUSLEIN, JR.
                                   Panel Chair





AFBCMR 00-03240




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 that he was credited with an
additional six (6) nonpaid inactive duty training (IDT) points,
resulting in a total of 50 total points for the Retirement/Retention
(R/R) year ending 30 May 1983, and that the R/R year ending 30 May
1983 is a satisfactory year of Federal Service; and that he was not
discharged from the Air Force Reserves on 2 January 1990 with a
general discharge but on that date was transferred to the Retired
Reserve Section awaiting retired pay at age 60 under the provisions of
Title 10, USC, Section 12731.





   JOE G. LINEBERGER

   Director

   Air Force Review Boards Agency