RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2009-00061
								COUNSEL: NONE
								HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His NGB Form 22, Report of Separation/Discharge and Record of Service, be upgraded from under other than honorable conditions (UOTHC) discharge to honorable, with full retirement benefits.

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APPLICANT CONTENDS THAT:

There was absolutely nothing that happened during his entire career that was not honorable. His UOTHC separation listed on his NGB Form 22 received from the Texas Air National Guard was not valid and it should be corrected to reflect honorable as noticed on his DD Form 214, Certificate of Release or Discharge From Active Duty.  His service record is outstanding in character and his DD Form 214 is honorable for that reason. He was given a full honorable discharge with 100 percent disability retirement from the National Guard, Air Force and the Marine Corps.  

In support of his application, the applicant provides copies of his DD Forms 214, Certificate of Release or Discharge from Active Duty, DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States, NGB Form 22, Report of Separation/Discharge and Record of Service, a copy of Special Order AZ-442, USAFR Discharge, letters of support,   and personal statements.

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

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STATEMENT OF FACTS:

The applicant served on Active Duty with the United States Marines Corps from 29 March 1976 until 28 April 1980 and was transferred to the Marines Corps Reserve. On 29 December 1986, he enlisted in the Texas Air National Guard (ANG). He reenlisted in the TXANG on 30 September 2000 for a period of six years. He was promoted to the grade of senior master sergeant with a date of rank of 26 January 1999. He was released from his Active Guard Reserve tour, effective 6 May 2001, with service characterized as honorable.

On 7 May 2001, the applicant was on an Air Guard Reserve (AGR) tour serving in Title 32 status as a full-time employee of the ANG at the time of the offense. On this same date, he pled guilty in the 208th District Court of Harris County, Texas, to an indecent act with his 10-year-old stepdaughter - a felony in the second degree.  As part of the plea agreement, the applicant admitted that on or about 24 September 2000, he touched the child's genitals with his hands and had her touch his penis with her hand. He was sentenced to 15 years in the state penitentiary by the State of Texas. 

On 25 October 2002, the applicant's squadron commander notified him by certified mail of his recommendation for involuntary separation for a civilian conviction in accordance with AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, para 3.21.4., Misconduct - Civilian Conviction. The applicant failed to acknowledge receipt of the notification within 30 days which constituted a waiver of those rights; including his right to a board hearing because of his failure to respond. On 10 January 2003, his commander recommended he be discharged with an UOTHC discharge for a civilian conviction. The staff judge advocate found the discharge package legally sufficient. On 2 February 2003, the Texas ANG (TXANG) commander recommended approval of the applicant's separation with a UOTHC characterization without lengthy service probation. On that same date, the Adjutant General of TXANG concurred with the TXANG commander recommendations. 

On 31 July 2003, the Secretary of the Air Force (SAF) directed the applicant be involuntary separated under the provisions of     AFI 36-3209, and directed an UOTHC discharge. Because the applicant had completed 18, but less than 20 years of satisfactory service creditable toward retirement pay, the SAF had to review and approve the appropriate discharge characterization. 

The applicant was separated effective 31 July 2003 with an under other than honorable conditions discharge.  He served 22 years,  7 months, and 2 days of total service for pay. The applicant’s time lost was 690 days due to civilian confinement.

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AIR FORCE EVALUATION:

NGB/A1POE recommends denial of the request and states the applicant was administratively discharged from the Texas Air National Guard due to a civilian conviction.  The SAF reviewed and determined the appropriate discharge characterization of UOTHC. The applicant's contends that his NGB Form 22 should be honorable; however, his records contain two separate discharge characterizations because he served two different periods of service. The DD Form 214 contained his entire period of Full-Time National Guard Duty--honorable, while his NGB Form 22 contains his entire period of service in the Texas Air National Guard--UOTHC. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the evaluation, stating he was incarcerated in 2003 and could not be in the ANG. He requests the Board grant relief to correct this error because he had left the military on 6 May 2001 and was found unfit by a medical evaluation board due to a hip replacement. He provides numerous letters and documentation to support his request.

Applicant's complete response, with attachments, is at Exhibit E.  

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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 an error or an injustice.   After careful consideration of the circumstances of this case and the evidence provided by the applicant, we are not persuaded the character of service for separation the applicant received from the TXANG was in error or unjust.  Applicant’s contentions are duly noted; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  In this respect, it appears the applicant’s case was properly processed through the Secretary of the Air Force Personnel Council (SAFPC) as an involuntary separation where a determination was made that he be discharged for misconduct and receive an UOTHC. With regard to the applicant’s request for a medical retirement, the Board took note that if he was in the disability evaluation system during the discharge process, his case would have been considered by the SAFPC as a dual action case and the applicant would likely have received the same character of discharge due to his severe misconduct. Although the applicant contends that absolutely nothing happened during his entire career that was not honorable, the evidence of record indicates that he was discharged as a result of a felony civilian conviction for indecency with a child; specifically, his ten-year old stepdaughter. Therefore, in view of the above and in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2009-00061 in Executive Session on 15 July 2009, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2009-00061:

	Exhibit A.  DD Form 149, dated 5 Feb 09, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, NGB/A1PS, dated 12 May 09, w/atch. 
	Exhibit D.  Letter, SAF/MRBR, dated 22 May 09.
	Exhibit E.  Applicant's Response, dated 12 Jun 09, w/atchs.




									
									Panel Chair

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