RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02227
            INDEX CODE:  100.03,131.00,
                              134.02, 135.00

            COUNSEL:  THE AMERICAN LEGION

            HEARING DESIRED:  NOT INDICATED

MANDATORY CASE COMPLETION DATE:  7 JAN 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1. He be reinstated in the Air Force Reserves.

2. He be reinstated to the position held previous to discharge.

3. He be reinstated to a unit of his choice.

4. All derogatory information related to his civil charge  be  removed  from
his records.

5. His previous Air Force Reserve unit cease and desist from  releasing  any
and all previous derogatory information to third  party  employer  prospects
that is related to the previous charge for which exonerated.

6. He be promoted to the grade of technical sergeant (E-6).

7. He be entitled to receive points towards retirement for time  lost  while
incarcerated and since discharged from the service.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was completely exonerated of the alleged incident in  a  trial  by  judge
and found not guilty.  The command  to  which  he  was  attached  improperly
discharged him before a requested discharge hearing was convened  and  after
a trial judge found him innocent of the charges.

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

_________________________________________________________________


STATEMENT OF FACTS:

During the time  period  in  question,  the  applicant  with  prior  service
reenlisted in the Air Force Reserves on 12  August  1994  in  the  grade  of
staff sergeant for a period of six years.

On 23 June 2000, the applicant was notified of  his  commander's  intent  to
initiate discharge action  against  him  for  Misconduct,  Commission  of  a
Serious  Offense,  and  3.21.3.1,  Sexual  Deviation.    Specifically,   the
commander indicated his reason for this action was the  applicant  committed
an indecent act with, or assault upon a child under  the  age  of  16  while
performing his civilian duties as a flight attendant  on  Tradewinds  Flight
#602 at Piarco International Airport, Trinidad, bound for New York.

The commander advised the applicant of his right to an Administrative  Board
Hearing, to consult legal counsel, and  to  submit  statements  in  his  own
behalf; or waive the above rights.

After consulting with counsel, the  applicant  requested  an  Administrative
Discharge Board Hearing and submitted statements in his own behalf.

In the commander’s recommendation for discharge  action,  he  indicated  the
applicant committed an indecent act, or assault upon a child under 16  years
of age while on board an aircraft on  the  runway  of  Piarco  International
Airport, Trinidad and while employed in his civilian capacity  as  a  flight
attendant.  The applicant  admitted  the  indecent  act/assault  to  Federal
Bureau  of  Investigation  (FBI)  agents  who  interviewed  him  about   the
incident.  He was arrested and ordered extradited by  the  Federal  District
Court for the Southern District of Florida to Trinidad and  Tobago  to  face
trial there for the offense of Serious Indecency on a  Minor,  in  violation
of Section 16(1)(A) of the Sexual Offenses Act  No.  27/1986,  Trinidad  and
Tobago.  The commander further indicated before recommending the  discharge,
he did not initiate corrective  action.   Counseling  and  other  corrective
actions were inappropriate responses in this matter, given the grave  nature
of the applicant’s misconduct.

On 23 June 2000, the Staff Judge Advocate  concurred  with  the  commander’s
recommendation to affect  the  applicant’s  discharge  from  the  Air  Force
Reserve.  He  further  indicated  the  serious  nature  of  the  applicant’s
admitted criminal misconduct, involving an indecent  assault  in  public  on
the person of a nine-year-old child, provided  ample  basis  upon  which  to
support this proposed action.  Given the quality standards and  core  values
upon which they are judged on a daily basis, clearly the  applicant  was  an
anathema to those  standards  and  values  and  had  marked  himself  as  an
individual  whose  continued  retention  in  uniform  and  recourse  to  the
privileges and entitlements of membership in the Air  Force  Reserve  should
be terminated as soon as possible.

On 18 September 2000, the applicant was  notified  by  the  Chief,  Military
Personnel Operations, of his intent to  initiate  discharge  action  against
him for misconduct, failure to meet financial obligations,  and  misconduct,
commissions of a serious offense, other serious offense.  Specifically,  the
applicant committed an indecent act upon a female child  under  the  age  of
16 and made unauthorized purchases  and  cash  advances  on  his  government
travel card.

The Military Personnel Division  advised  the  applicant  of  his  right  to
present his case before an Administrative Discharge Board, consult  military
legal counsel, submit statements in his  own  behalf;  or  waive  the  above
rights.  It appears there is no  documentation  in  the  applicant’s  record
that he responded to this notice.

On 8 November 2000, the Director of Military Law recommended  the  applicant
be discharged with service  characterized  as  under  other  than  honorable
conditions under the provisions of AFI 36-3209.

The applicant requested an Administrative  Discharge  Board  Hearing  and  a
personal appearance with representation by military  legal  counsel  of  his
choice.

On 1 December 2000, the vice commander approved the applicant’s under  other
than honorable conditions (UOTHC) discharge.

Reserve Order A-066, dated 1 December  2000,  indicates  the  applicant  was
discharged from the Air  Force  Reserve  effective  16 December  2000.   His
service was characterized as UOTHC.  Authority - AFI 36-3209, Misconduct,  A
Pattern  of  Misconduct,  Failure  to   Meet   Financial   Obligations   and
Misconduct, Commission of a Serious Offense, Sexual Deviation.   Misconduct,
Commission of a Serious Offense, Sexual Deviation is cited  as  the  primary
reason for discharge - Reenlistment Eligibility status:  Ineligible.

On  16  December  2000,  the   applicant   was   discharged   with   service
characterized as UOTHC under the  provisions  of  AFI  36-3209,  Misconduct,
Pattern of Misconduct, Failure to Meet Financial Obligations, Commission  of
a Serious Offense, Sexual Deviation.  He served 9 years, 3  months,  and  13
days of total military service and 1 year, 3 months, and 14  days  of  total
active military service.

The applicant provided documentation from the Supreme  Court  of  Judicature
of Trinidad and Tobago dated 29 January 2002 which indicates  he  was  found
not guilty of an indecent assault.

On 17 April 2003, the Air Force Discharge Review  Board  (AFDRB)  considered
and approved the applicant’s request to upgrade his UOTHC  discharge  to  an
honorable  discharge,  to  change  the  reason  for  discharge  Pattern   of
Misconduct, Failure to Meet Financial Obligations, Commission of  a  Serious
Offense, Sexual Deviation to Secretarial Authority, and changed his RE  Code
to 3K.  They concluded the discharge was not consistent with the  procedural
and substantive requirements of the discharge regulation and was not  within
the discretion of the discharge authority and that  the  applicant  was  not
provided full administrative due process.  There was an error  in  procedure
associated with the discharge at the time  of  issuance;  specifically,  the
applicant was informed about an Administrative Discharge Board  and  elected
such.  However,  the  applicant’s  commander  did  not  follow  through  and
discharged the applicant.  The  rights  of  the  applicant  were  prejudiced
thereby.   The  Board  further  concluded  the  overall   quality   of   the
applicant’s service was more accurately reflected by an honorable  discharge
and  the  reason  for  the  discharge  was  more  accurately  described   as
Secretarial Authority.  The  applicant’s  characterization  and  reason  for
discharge should be changed to honorable  and  Secretarial  Authority  under
the provisions of Title 10, USC 1553.  The applicant’s  RE  code  should  be
changed to 3K (Exhibit B).

Reserve Order A-120, dated  16  March  2005,  indicates  the  applicant  was
discharged from the Air Force Reserve effective 16 December  2000.   Service
was  characterized  as  honorable.    Authority:    Secretarial   Authority.
Reenlistment eligibility status:  3K - Eligible.

_________________________________________________________________

AIR FORCE EVALUATION:

AFRC/DPM  recommended  denial  indicating  the   applicant   was   initially
discharged from the Air Force Reserve based on  the  misconduct,  commission
of a serious  offense,  sexual  deviation  and  failure  to  meet  financial
obligations,  as  authorized  by  AFI  36-3209,  paragraphs   3.21.3.1   and
3.21.3.4.  Therefore, even though he was exonerated of  the  alleged  sexual
offense against a minor  his  discharge  from  the  Air  Force  Reserve  was
substantiated based on failure to meet financial obligations.   This  matter
was probably a  weighted  factor  in  the  AFDRB’s  decision  to  direct  an
improved characterization of service and to change the reason for  discharge
versus over-running the discharge in whole.

The applicant also states he should have been retained under  the  provision
of AFI 36-3209, paragraph 3.10 because he  was  found  not  guilty  for  the
alleged sexual offense against a minor.  Again, the  applicant  was  subject
to discharge for reasons other than the alleged offense that  he  was  found
not guilty.

If the Air Force Board for Correction of Military Records  (AFBCMR)  decides
to grant the relief sought, HQ AFRC should be directed to fully restore  the
applicant to the Air Force Reserve.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 26 August and 4 November 2005, a copy of the  Air  Force  evaluation  was
forwarded to the applicant and counsel for review  and  response  within  30
days.  As of this date, no response has been received by this office.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

USAF/JAA indicated they will discuss each of  the  applicant’s  requests  in
turn.

Removal of Bar to Reenlistment:  They understand  the  applicant’s  RE  code
has been changed to “3K” which permits reenlistment.  The  applicant  should
be advised that he is not  barred  from  reenlisting.   Removing  a  bar  to
reenlistment is not the same as ordering the applicant to be enlisted.   The
applicant must meet all current requirements and standards for  reenlistment
in the Reserves.

Reinstatement to the position previously held:  This  presupposes  that  the
applicant is reenlisted into the Reserves.  If the  applicant  is  otherwise
qualified to hold his old position, and there is a vacancy or need  for  him
to serve in that position, then the applicant can be restored to his  former
position.  However, as in all cases, the needs of the Air Force come  first,
and the applicant will have to be  placed  in  a  position  consistent  with
those needs.

Reinstatement to his unit of  choice:   Again,  this  presupposes  that  the
applicant is reenlisted  into  the  Reserves.   As  is  the  case  with  the
previous request, if there is a vacancy at a unit in a  location  where  the
applicant desires to serve, the applicant can  be  assigned  to  that  unit.
However, as in all cases, the needs of the Air Force  come  first,  and  the
applicant would have to be assigned to a unit consistent with those needs.

Removal of all derogatory information related to the civilian  charge:   The
military records are not purged simply because a member was acquitted  at  a
criminal trial.  Those records and information are still  relevant  and  can
be used for a variety of actions.  They note that the  applicant  refers  to
his “exoneration” at his trial.  However, they note that  a  criminal  trial
uses the much higher standard of “proof beyond a reasonable doubt”  than  is
used in administrative actions that typically  employ  a  “preponderance  of
the evidence” test.  The most that can be said is that the jury in  Trinidad
did not find that the prosecution proved, beyond a  reasonable  doubt,  that
the applicant committed the misconduct of which he  was  accused.   However,
in the military personnel context, nearly all administrative  decisions  are
made using the “preponderance of the  evidence”  standard  --  is  something
more or less likely to be true.  In this case,  while  they  understand  the
applicant’s protestations concerning his interview  by  the  FBI,  the  fact
remains that he confessed to very serious misconduct.  This  confession,  as
well as the other evidence in the case, can be  properly  used  by  military
(and civilian) authorities to make civil and  administrative  determinations
(for example, whether the applicant should be assigned  duties  which  place
him in contact or in proximity with children).  For those reasons,  they  do
not believe this evidence should be removed from his military records.

Unit should cease and desist from releasing  derogatory  information:   This
request should be denied.   As  noted  above,  this  information  is  highly
relevant and useful in a number of contexts,  and  there  should  not  be  a
blanket prohibition on its release.  Instead,  this  information,  like  all
information in government records, is covered by the  Privacy  Act  and  the
Freedom of Information Act (FOIA).  They assume that the unit  is  releasing
the information consistent with the guidance in those Acts.

Promotion to E-6:  They find no basis in law or equity in  support  of  this
request.  In fact, they note the applicant’s last EPR, completed before  any
allegations  of  misconduct  were  raised,  was  extremely  mediocre.    The
applicant should compete for promotion on an equal basis with his peers.

Credit for time lost while incarcerated:  This  request  should  be  denied.
There is no basis in law or equity for this request.  Time spent in  prison,
even if a  person  is  later  acquitted,  is  considered  “bad  time.”   The
applicant was lawfully ordered into pretrial  confinement  by  two  separate
jurisdictions.  There is no authority to retroactively  compensate  him  for
his time spent in prison.

In conclusion, the applicant has not been barred from  being  reenlisted  in
the Air Force  Reserve.   However,  whether  the  applicant  is  allowed  to
reenlist, his assignment, and where he is assigned should be  based  on  the
needs of the Air Force.  They recommend denying his request with respect  to
the information in his military records.  They also  recommend  denying  his
request for promotion, and for compensation for his time spent in prison.

The evaluation is at Exhibit E.

_________________________________________________________________








APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 2 March 2006, a copy of the Air Force evaluation  was  forwarded  to  the
applicant and counsel for review and response within  30 days  (Exhibit  F).
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 timely filed.

3.    Sufficient relevant evidence has been  presented  to  demonstrate  the
existence of an error or injustice warranting partial approval with  respect
to the applicant’s request that all derogatory information  related  to  his
civil charge be removed from his records and his previous Air Force  Reserve
unit cease and desist from releasing any and all derogatory  information  to
third party employer prospects that is related to the  previous  charge  for
which he was exonerated.  The applicant  contends  that  he  was  completely
exonerated of the alleged incident  in  a  trial  by  judge  and  found  not
guilty.  The command to which he  was  attached  improperly  discharged  him
before a requested discharge hearing was convened and after  a  trial  judge
found him innocent of the charges.  The Board notes that on 17  April  2003,
the AFDRB considered and approved the applicant’s  request  to  upgrade  his
UOTHC discharge  to  an  honorable  discharge,  to  change  the  reason  for
discharge  from  Pattern  of   Misconduct,   Failure   to   Meet   Financial
Obligations,  Commission  of  a  Serious  Offense,   Sexual   Deviation   to
Secretarial  Authority,  and  changed  his  RE  Code  to  3K.   They   found
sufficient mitigation and extenuation to substantiate an impropriety and  to
upgrade the discharge and change the reason for the  discharge.   The  board
also changed the applicant’s RE code.  They concluded the discharge was  not
consistent  with  the  procedural  and  substantive  requirements   of   the
discharge regulation and was not within  the  discretion  of  the  discharge
authority and that the applicant was not provided  full  administrative  due
process.   Further,  the  AFDRB  found  there  was  an  error  in  procedure
associated with the discharge at the time  of  issuance;  specifically,  the
applicant was informed about an Administrative Discharge Board  and  elected
such.  However,  the  applicant’s  commander  did  not  follow  through  and
discharged  the  applicant;  thereby,  the  rights  of  the  applicant  were
prejudiced.   The  AFDRB  further  concluded  the  overall  quality  of  the
applicant’s service was more accurately reflected by an honorable  discharge
and  the  reason  for  the  discharge  was  more  accurately  described   as
Secretarial Authority.   Therefore,  the  applicant’s  characterization  and
reason for discharge were changed to  honorable  and  Secretarial  Authority
under the provisions of Title 10, USC 1553 and the RE code  was  changed  to
3K.  The Board also notes the  applicant  provided  documentation  from  the
Supreme Court of the Judicature of Trinidad  and  Tobago  dated  29  January
2002 which indicates he was found not guilty of  an  indecent  assault.   In
view of the above finding, the Board  is  of  the  opinion  that  since  the
applicant was exonerated of the civil charge, it would be  an  injustice  to
the  applicant  to  continue  to  suffer  the  effects   of   the   negative
documentation in his records pertaining solely to  this  issue.   Therefore,
we recommend the applicant’s records be corrected to  the  extent  indicated
below.

4.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of an error or an  injustice  warranting  that  the  applicant  be
reinstated in the Air Force Reserves, he be reinstated to the position  held
previous to discharge, he be reinstated to a  unit  of  his  choice,  he  be
promoted to the grade  of  technical  sergeant  (E-6),  he  be  entitled  to
receive points towards retirement  for  time  lost  while  incarcerated  and
since discharged from the service.  The  applicant’s  contentions  are  duly
noted; however, in our  opinion,  the  detailed  comments  provided  by  the
Office of the Judge Advocate  General  adequately  address  the  applicant’s
contentions and are supported by the evidence of  record.   In  the  Board’s
opinion, the action of the AFDRB has provided the applicant the  opportunity
to reenlist should he so desire and compete for assignments  and  promotions
in accordance with the needs and  policies  of  the  respective  service  in
which he wishes to pursue enlistment.  Therefore, we are in  agreement  with
the comments and recommendation of the Office of the Judge Advocate  General
and adopt their rationale as the basis for our decision that  the  applicant
has not been the victim of either an error  or  injustice  with  respect  to
these requests.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air  Force  relating
to  APPLICANT,  be  corrected  to  show  that  any  and  all  documents  and
references  thereto  pertaining  to  his  misconduct  under   AFI   36-3209,
paragraph 3.21.3.1, Sexual Deviation, for which actions he  was  charged  on
or about 11 February 1999, be declared void and removed from his records.

_________________________________________________________________










The following members of the Board considered AFBCMR Docket Number  BC-2005-
02227 in Executive Session on 12 April 2006 under the provisions of AFI  36-
2603:

                 Ms. Kathleen F. Graham, Panel Chair
                 Mr. Wallace F. Beard, Jr., Member
                 Ms. Jean A. Reynolds, Member

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

   Exhibit A.  DD Form 149, dated 1 Jul 05, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, ARFC/DPM, dated 17 Aug 05.
   Exhibit D.  Letters, SAF/MRBR, dated 26 Aug and 4 Nov 05,
                     w/atch.
   Exhibit E.  Letter, USAF/JAA, dated 22 Feb 06.
   Exhibit F.  Letter, AFBCMR, dated 2 Mar 06, w/atch.




                 KATHLEEN F. GRAHAM
                 Panel Chair




AFBCMR BC-2005-02227





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 XXXXX, be corrected to show that any and all documents and
references thereto pertaining to his misconduct under AFI 36-3209,
paragraph 3.21.3.1, Sexual Deviation, for which actions he was charged on
or about 11 February 1999, be, and hereby are, declared void and removed
from his records.






            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency