RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-01083
            INDEX CODE:  136.00

            COUNSEL:  MR TRIP SHAWVER

            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His record be changed to show he was retired on 23 October 1999 rather
than discharged.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He honored his commitment to the Air Force by serving for 23 years and
asks that the Air Force (AF) honor it’s commitment to his  service  by
entitling him and his  family  to  an  active  duty  retirement.   His
records show his service as exemplary  for  23  of  the  24  years  he
served.  Additionally, he served  with  distinction  for  those  years
setting the highest standards for him, as well as for those who served
around him.  He contends he served  in  hardship  countries  with  his
family like Turkey and Greece in the mid 1970’s.  He also endured many
temporary duty hardship tours without his  family  and  without  being
able to contact them or let them know where he was for long periods of
time.  Commitment to his career caused him to miss many family events,
including his daughter’s wedding.  He always did his best to serve his
country honorably and made sure those around him did as well.  He  was
asked for by name from higher headquarters because he had become known
for the outstanding work he had accomplished during his career.

He realizes he committed a crime in 1999 that ended  his  career.   He
served the time required by Kansas for his crimes and will forever  be
known as a sex offender.  He  feels  he  deserves  the  punishment  he
received as he  earned  it.   He  also  feels  like  he  deserves  his
retirement as he worked 24 years of his life towards earning that.  He
is branded a sex offender for something he did for two months  of  his
life; he should also be known as an Air Force retiree for something he
did for 24 years of his life.

He contends he submitted his request for retirement papers on 15 March
1999 and that his request was not given a proper or legal review.

In support of his appeal, the applicant has provided copies of his  DD
Form 214, Certificate of Release or  Discharge  from  Active  Duty,  a
United States Senate Privacy Act Release form, a  personal  statement,
and copies of his notification of  administrative  hold,  a  statement
from his  mental  health  provider,  a  statement  from  his  squadron
commander, his request for separation, a letter from  his  counsel  to
his Wing Commander, and a response to counsel’s letter from  the  Wing
Judge Advocates office.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 16 October 1975.   From
7 January 1999 to 31 March 1999 he was the subject  of  an  Air  Force
Office of Special Investigation  (AFOSI)  investigation  initiated  to
investigate his possible involvement in a sexual relationship  with  a
minor.  On 2 March 1999, during  the  AFOSI  investigation,  the  18th
Judicial District Court of  Kansas  charged  him  with  one  count  of
Indecent Liberties, two counts of Aggravated Indecent  Liberties,  and
one count of Criminal Sodomy.   On  15  October  1999,  his  commander
notified him that he was recommending his  involuntary  discharge  for
civilian conviction with an  under  other  than  honorable  conditions
(UOTHC) discharge.  As he had over 20 years of service, his  commander
informed him that he could apply for retirement.   However,  he  would
have to voluntarily extend to ensure he remained on  active  duty  for
the duration of the discharge  process.   Even  then,  his  retirement
package would have to be approved by the Office of  the  Secretary  of
the Air Force (OSAF).  His commander gave him seven days to respond to
his recommendation letter.  On 19 October 1999, the applicant signed a
document indicating he understood he could either  voluntarily  extend
his current enlistment or separate from the USAF on the last duty  day
before reaching his High Year of Tenure (HYT),  which  was  22 October
1999.

On 22 October  1999,  he  submitted  a  memorandum  to  his  commander
requesting he be separated from military  service.   In  the  memo  he
requested retirement pursuant to Title 10 United States Code  (U.S.C.)
8914 and noted he did not void or  waive  his  rights  listed  in  the
recommendation for involuntary discharge package he received from  his
commander.   He  also  asked  about  any  information  regarding   the
retirement package he submitted on 15 March 1999.  His application for
retirement  was  refused  by  local  retirement  processing  officials
because  he  was  on  admin  hold  as  a  result   of   the   civilian
investigation.

He was honorably discharged effective 23 October 1999  for  completion
of required active service after serving 24 years and 8 days.  He  was
discharged in the grade of Master Sergeant (MSgt/E-7).

On 26 October 1999,  his  counsel  submitted  a  letter  to  the  Wing
Commander asking the commander to ensure  the  applicant’s  retirement
paperwork was being processed and his family receive  the  appropriate
identification necessary  for  them  to  obtain  retirement  benefits.
Counsel was notified by  the  Wing  JA  that  the  applicant  and  his
military counsel were informed that an election  to  separate  on  his
Date  of  Separation  (DOS)  rather  than  voluntarily  extending  his
enlistment would mean he would be separating  without  having  applied
for retirement and he would be ineligible to apply for retirement.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPRRP  addresses  the  retirement  aspect  of  this   case   and
recommends denial.  DPPRRP states the applicant was the subject of  an
AFOSI investigation from 7 January 1999 through 31 March 1999 and,  in
accordance with  AFI  36-3203,  Service  Retirements,  any  retirement
application he would have submitted would not have been considered  as
he was precluded from submitting  an  application  during  that  time.
Because he  had  been  charged  by  civil  authorities,  but  not  yet
convicted, the restriction prohibiting his application for  retirement
could’ve been waived if the  nature  of  the  civil  charges  did  not
warrant administrative action.  However, on 7 September 1999, he  pled
guilty to all four counts and administrative discharge action began.

DPPRRP states the applicant was fully briefed that he was entitled  to
request extension of his enlistment and  await  SAF/PC’s  decision  on
retirement in lieu of discharge.  Clearly, with 24 years  of  service,
he had much to lose by not extending  yet  he  signed  a  request  for
separation.  Regarding his contention that he qualifies for retirement
under Title 10 USC 8914, DPPRRP argues that in this case he would have
been required to submit a new  application  for  retirement  when  his
discharge processing was complete.  He would have had  to  extend  his
enlistment to ensure his discharge processing could be  completed  and
he chose not to  do  so.   The  “administrative  hold”  to  which  the
applicant  refers  applies  to  reassignment,  not  retirement.    The
applicant may have been put on administrative hold,  but  it  was  the
AFOSI  investigation,  civil  charges,  guilty   plea,   and   pending
administrative discharge action that precluded him from  submitting  a
retirement application.

DPPRRP’s complete evaluation, with attachments, is at Exhibit C.

AFPC/DPPRS addresses the separation processing and recommends  denial.
DPPRS states  based  on  the  documentation  on  file  in  the  master
personnel records and the severity  of  the  offenses  committed,  the
applicant voluntarily elected to separate on his  DOS  of  23  October
1999.   He  submitted  no  evidence  nor  identified  any  errors   or
injustices that occurred during his separation process.  Additionally,
he provided no facts  to  warrant  his  separation  be  changed  to  a
retirement.

DPPRS’s complete evaluation, with attachment, is at Exhibit D.

AFPC/JA first questions the fact that applicant waited some  four  and
one-half years to submit his application with the explanation provided
that he did not want to bring further embarrassment to the  Air  Force
or his family by starting this process while under incarceration.   JA
states the reason for the delay, while arguably a noble excuse, is not
sufficient rationale for him to have waited longer than the  requisite
3-year time limit with which to file.  JA recommends  his  application
be denied as untimely, and  the  time  limit  not  be  waived  in  the
interest of justice.

JA concurs with AFPC/DPPRRP’s  findings  the  applicant  was  properly
denied the ability to apply for retirement under the auspices  of  AFI
36-3203, due to his being the subject of an  AFOSI  investigation  and
the civil charges against him.  Also, by electing to separate upon the
expiration of his term of service, thus guaranteeing him an  honorable
discharge, applicant waived his opportunity to  pursue  a  retirement;
i.e. he made a conscious choice, after benefit of  legal  counsel,  to
waive the opportunity to obtain his retirement.  That his records  now
reflect the results for which he bargained does  not,  in  JA’s  view,
constitute an error or injustice.  In JA’s opinion, the  Board  should
not permit the applicant to gain through the back door what  he  could
have and should have pursued utilizing the properly constituted  means
had he chosen to do so.  His conscious choice to give up a chance at a
possible retirement enabled  him  to  effectively  cut  his  potential
losses and secure himself an honorable discharge.

JA recommends the application be denied as untimely.  Should the Board
determine  to  consider  the  application  on  it’s  merit,  we  would
recommend that it be denied as the applicant has failed  to  establish
any error or injustice prejudicial to his substantial rights.

JA’s complete evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant’s
counsel on 21 May 2004 for review and comment within 30 days.   As  of
this date, no response has been received by this office.

_________________________________________________________________

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.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
offices of primary responsibility, AFPC/JA in  particular,  and  adopt
their rationale as the basis for our conclusion that the applicant has
not been the victim of an error or injustice.   By  virtue  of  having
served more than 20 years of service, he was given the opportunity  to
choose whether  or  not  to  accept  an  honorable  discharge  without
retirement benefits or to request  extention  of  his  enlistment  and
await SAF/PC’s decision on retirement in lieu of discharge.  He  chose
an honorable discharge.  Therefore, in the absence of evidence to  the
contrary, we find no compelling basis to recommend granting the relief
sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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 AFBCMR Docket Number BC-
2004-01083 in Executive Session on 15 July 2004, under the  provisions
of AFI 36-2603:

      Mr. David W. Mulgrew, Panel Chair
      Mr. James E. Short, Member
      Mr. Gary G. Sauner, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Mar 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRRP, dated 23 Apr 04, w/atchs.
    Exhibit D.  Letter, AFPC/DPPRS, dated 29 Apr 04, w/atch.
    Exhibit C.  Letter, AFPC/JA, dated 12 May 04.
    Exhibit E.  Letter, SAF/MRBR, dated 21 May 2004.




                                   DAVID W. MULGREW
                                   Panel Chair