RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2000-00074
            INDEX CODE:  110.00
            COUNSEL:  Mr. Victor Kelley

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His administrative discharge for  misconduct  be  corrected  to  reflect
that he was retired in the grade of master sergeant effective 1 Nov 94.

2.  He be retroactively reimbursed for all retirement income and benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was unjustly denied an opportunity to  appear  before  an  administrative
discharge  board.   He  submitted  a  request  for  retirement  in  lieu  of
discharge and requested a hearing before an administrative discharge  board.
 During the time he was in civilian incarceration.  One phone call was  made
to the incarceration facility.  No other attempts were  made  to  ensure  he
was able to meet the discharge board.  He was then advised  by  his  counsel
to waive his right to a hearing, after which time he was  discharged.   More
efforts should have been taken to ensure his rights to due process were  not
denied.  His discharge processing was flawed because of numerous  regulatory
violations in his discharge processing.  Counsel cited  previously  approved
AFBCMR cases that he believes are essentially identical to  the  applicant's
case.

In  support  of  his  request,  applicant  provided  his  counsel's   brief,
documentation  associated  with  his  retirement  processing,  documentation
associated  with  his  request  for  retirement  in   lieu   of   discharge,
documentation associated with his discharge processing, and  copies  of  his
court  proceedings.   His  complete  submission,  with  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  25
Mar 75.  He was progressively promoted to  the  grade  of  master  sergeant,
having assumed that grade effective and with a date of rank  of  1  Aug  91.
Applicant applied for and received an approved  voluntary  retirement  which
was to be effective on 1 Nov 94.   In  September  1994,  while  on  terminal
leave, applicant was arrested by civilian authorities.  In  accordance  with
AFI 36-3203, his approved retirement was suspended.  On 17 Dec  96,  he  was
convicted of two counts of sexual battery on a child under  the  age  of  12
and two counts of lewd and lascivious behavior with a child  under  the  age
of 12.  He was sentenced to two consecutive life sentences  plus  30  years,
without the possibility of parole for 50 years.

On  3  Mar  97,  applicant  was  notified  by  his  commander  that  he  was
recommending that he be discharged from the Air Force  for  misconduct.   He
was advised of his rights in this matter and  acknowledged  receipt  of  the
notification  on  that  same  date.   After  consulting  counsel,  applicant
requested several delays and on  7  Aug  97,  he  submitted  a  request  for
retirement in lieu of administrative discharge.  His request for  retirement
was returned without action and  he  was  scheduled  for  an  administrative
discharge board hearing on 30 Oct 97.  On 29 Oct  97,  applicant  signed  an
unconditional waiver of his  right  to  an  administrative  discharge  board
hearing.  On 30 Oct 97, applicant resubmitted his request for retirement  in
lieu of discharge.  In a legal review of his unconditional waiver, the  wing
staff judge advocate recommended that his waiver be accepted.   In  a  legal
review of the administrative discharge, the assistant staff  judge  advocate
found the case legally sufficient and recommended discharge  with  an  under
other than honorable conditions discharge.  The applicant's  case  file  was
forwarded to the Secretary of the Air Force Personnel Counsel  (SAF/PC)  for
action.  On 2 Feb  98,  SAF/PC  disapproved  his  application  of  voluntary
retirement and directed that he be discharged.  Applicant was discharged  on
21 Aug 00.  He served 23 years, 1 month, and 14 days on  active  duty.   The
period 11 Dec 96 through 24 Mar 99 was considered  time  lost.   During  the
period 25 Mar 99 through 21 Aug  00,  the  applicant  was  in  excess  leave
status.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS  recommends  denial.   DPPRS  states  that  the   discharge   was
consistent  with  the  procedural  and  substantive  requirements   of   the
discharge  regulation  and  was  within  the  discretion  of  the  discharge
authority.  The discharge  processing  was  legal  and  in  accordance  with
discharge directives.  The DPPRS evaluation is at Exhibit C.

AFPC/DPPRRP  recommends  denial.   DPRRP  states  that   his   request   for
retirement was appropriately processed and no errors or injustices  occurred
in the processing of his case.  The DPPRRP evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel states that  the  applicant  rendered  in  excess  of  23  years  of
distinguished service to our nation.  Under the circumstances of this  case,
his not being permitted to retire serves only to punish his family,  who  by
nature  of  their  support  and  loyalty  over  the  years   also   rendered
distinguished service to our country.  The facts and  circumstances  of  his
waiver  of  his  right  to  an  administrative   discharge   board   reflect
ineffective counsel.  Upon advise of counsel, the applicant waived his  best
chance of securing a favorable decision at the command level.  He gave up  a
significant opportunity without receiving anything in return.  His  complete
submission is at Exhibit F.

_________________________________________________________________

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 an injustice that would warrant partial relief.  We  note  that
prior to the incident, which led to his conviction in a civilian court,  the
applicant had served  honorably  and  faithfully  for  over  19  years.   In
addition, at the time of his arrest, the applicant had been relieved of  his
duties and was effectively, retired from the Air Force.  While we in no  way
condone the actions of which he was accused, we believe that denial  of  his
retirement  and  the  decision  to  administratively   discharge   him   was
particularly harsh under the circumstances of this case.  In  this  respect,
denial of his military retirement benefits  has  negligible  impact  on  the
applicant because of his incarceration.  However, we believe that it  is  an
injustice for his family to suffer the adverse effects of the  loss  of  his
retirement and the benefits thereof.  Further, we believe the  injustice  to
the applicant's family is perpetuated by allowing this  single  incident  to
overshadow their sacrifices and contributions to this  nation  for  over  22
years.  Accordingly, we recommend that his records be corrected  to  reflect
his retirement from the Air Force.  In arriving at our decision, we  realize
that military members are normally retired  with  service  characterized  as
honorable.  However, because of the  egregious  nature  of  the  applicant's
crimes, we do not believe that an honorable characterization of his  overall
service would be appropriate.  Therefore we recommend  that  he  be  retired
with service characterized as  general  (under  honorable  conditions).   We
note that the applicant requests that his retirement effective 1 Nov  94  be
reinstated.  However, since he was recalled to active duty and served  until
21 Aug 00, we believe that the appropriate effective date should be on  that
date.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

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

      a.  He was not discharged from the Air Force on 21  August  2000,  but
rather on that date he was continued on active duty.

      b.  On 31 August 2000, he was released  from  active  duty  and  on  1
September  2000,  he  was  retired  for  length  of  service  with   service
characterized as general (under honorable conditions).

      c.  On 31 August 2000,  he  elected  spouse-only  coverage  under  the
Survivor Benefit Plan (SBP) based on full retired pay.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number  BC-2000-
00074 in Executive Session on 9 Dec 03, under  the  provisions  of  AFI  36-
2603:

      Mr. Roscoe Hinton, Jr., Panel Chair
      Ms. Olga M. Crerar, Member
      Ms. Cheryl Jacobson, Member

All members voted to correct the records,  as  recommended.   The  following
documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Dec 99, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 15 Sep 03.
    Exhibit D.  Letter, AFPC/DPPRRP, dated 29 Sep 03.
    Exhibit E.  Letter, SAF/MRBR, dated 3 Oct 03.
    Exhibit F.  Letter, Counsel, dated 15 Oct 03.
    Exhibit G.  Letter, SAF Personnel Counsel, dated 2 Feb 98.
    Exhibit H.  Letter, SAF/MRBC, dated 29 Oct 03




                             ROSCOE HINTON, JR.
                                             Panel Chair




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

FROM: SAF/MR

SUBJECT:    AFBCMR Case on

      I have carefully reviewed all of the circumstances of this case and
do not agree with the AFBCMR panel’s recommendation to grant the
applicant's request that his records be corrected to reflect that he was
retired in the grade of master sergeant (E-7).

      The applicant was convicted by civil court of sexually molesting
two11-year-old girls in his swimming pool.  He was subsequently convicted
in a civil court of two counts of sexual battery of a child under the age
of 12 and two counts of lewd and lascivious behavior on, or in the presence
of, a child under the age of 12.  He was sentenced to two consecutive life
sentences, plus 30 years, without the possibility of parole for 50 years.
A voluntary request for retirement was disapproved by the Secretary of the
Air Force Personnel Council (SAF/PC) and it was ordered that he be
discharged Under Other Than Honorable Conditions (UOTHC).  At the time of
his discharge, he was serving in the grade of MSgt with 23 years, 1 month,
and 14 days of active military service.  In his application to the AFBCMR,
the applicant contends that because of ineffective counsel, his discharge
process was flawed and more efforts should have been taken to ensure his
rights to due process.  He further contends denial of his retirement and
the associated benefits serves only to punish his family who, because of
years of support and loyalty, have rendered distinguished service to this
country.

      The Board found no errors in the actions taken against the applicant.
 Nonetheless, in a novel approach, it cites the applicant's lengthy
honorable service, the fact that he had an approved retirement at the time
of his civil conviction, and concludes his administrative discharge without
entitlement to retired pay is too harsh and, therefore, unjust.  Having
said this, the Board goes on to recommend the applicant's retirement with a
general discharge as opposed to honorable.  The Board also believes it is
an injustice for the applicant's family to suffer the adverse effects of
the loss of his retirement and the associated benefits and to allow this
single incident to overshadow their sacrifices and contributions to this
Nation for over 22 years.

      I am not unsympathetic with the plight of his spouse and children.
Nor am I unappreciative or ungrateful for their contributions during his
years of honorable service.  I am not aware of any law or regulation that
allows retirement for the purpose of awarding benefits to the applicant's
dependents.  While it is unfortunate indeed, the applicant's family's
dilemma was brought about solely because of his misconduct and I find no
compelling reason to treat them differently than other families similarly
situated.


      The AFBCMR has wide latitude in determining those circumstances that
constitute an injustice warranting relief and its recommendation is
entitled to considerable deference.  I am aware, however, that the court of
claims has stated that injustice within the meaning of the Board's charter
is treatment by military authorities that shocks the sense of justice.  We
do not know the true extent of the sexual battery on a child under the age
of 12 and the two counts of lewd and lascivious behavior with a child under
the age of 12.  However, because of the length of the sentences the
applicant received, I am not persuaded his treatment by military
authorities constitutes either an error or an injustice.  Accordingly, it
is my decision that the application be denied.  To do otherwise, would be
grossly unfair to the numerous military members who reached retirement
eligibility, but are deprived of receipt of retired pay because of gross
misconduct.




                                        MICHAEL L. DOMINGUEZ
                                        Assistant Secretary of the Air
Force
                                        (Manpower and Reserve Affairs)