RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04685 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His dishonorable discharge (DD) be upgraded to honorable and he 
be allowed to retire. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

The Air Force erroneously cancelled his approved retirement when 
he was placed under investigation prior to his retirement date. 
His orders were rescinded because of the investigation in 
violation of AFI 36-3203, Service Retirements. Table 2.1 of the 
AFI precludes the “submission or processing” of a retirement 
application if the member is under investigation, but it must 
not restrict a member from retiring when the member’s retirement 
processing has already been completed and the member has already 
been approved for retirement by the Secretary of the Air Force. 

 

In support of his request, the applicant provides an expanded 
statement and copies of his retirement order and amendment; 
DD Form 2656, Data for Payment of Retired Personnel; 
DD Form 214, Certificate of Release or Discharge from Active 
Duty; excerpts from his military personnel records; as well as 
documents related to his court-martial proceedings. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant’s military personnel records indicate he enlisted 
in the Regular Air Force on 17 Jan 86 and was progressively 
promoted to the grade of technical sergeant (E-6) prior to the 
matter under review. 

 

 

 


The remaining relevant facts pertaining to this application are 
described in the letters prepared by the appropriate offices of 
the Air Force which are attached at Exhibits C and D. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFPC/DPSOR recommends denial, indicating there is no evidence of 
an error or injustice. The applicant was convicted of 
violations of Article 120, Rape and Carnal Knowledge, and 
Article 134, General Article, of the Uniform Code of Military 
Justice (UCMJ) by a court-martial and sentenced to a DD and 
confinement for 18 years and 4 months, forfeiture of all pay and 
allowances, and reduction to the grade of airman basic (E-1). 
Approved was a DD and confinement for 15 years, forfeiture of 
all pay and allowances, and reduction in grade to airman basic 
(E-1). He entered military confinement on 22 Jan 07 and is 
currently confined at Fort Leavenworth, KS. He appealed his 
sentence and, on 19 Jul 10, his sentence was affirmed and the DD 
was ordered executed. On 27 Sep 10, he was furnished a DD. The 
applicant cites various provisions of AFI 36-3203 to support the 
argument he should have been allowed to retire. However, absent 
from his citations is Note 1 of Table 2.1., Conditions that 
Preclude Submission or Processing of an Application, which 
states, “If member applied for retirement and it later develops 
that a restriction applies, MPF immediately notifies 
HQ AFMPC/DPMRR2 [now AFPC/DPSOR] and the MAJCOM so that 
retirement processing is suspended.” Table 2.1. lists three 
rules restricting retirement. Rule 1 states, “If a member is 
under investigation, the MPF suspends processing the application 
until the investigation is complete. Then if one or more 
restrictions in Table 2.2. apply, process accordingly. When no 
further action is taken after investigation is completed, return 
to normal application processing.” The applicant’s retirement 
orders were rescinded on 15 Nov 05 when his commander made 
notification that he was under investigation. The investigation 
led to court-martial charges and a court-martial sentence, which 
are both retirement restrictions in accordance with Table 2.2. 
According to AFI 36-3203, retirement processing is considered to 
be from the point the member initially applies for retirement 
until the actual retirement date. As such, it was within the 
Air Force’s authority to restrict the applicant from retiring on 
1 Feb 06. 

 

A complete copy of the AFPC/DPSOR evaluation is at Exhibit C. 

 

AFLOA/JAJM recommends denial, indicating there is no evidence of 
an error or injustice. The applicant does not allege error or 
injustice in how the court-martial was conducted, but instead 
contends he would have been allowed to retire instead of facing 
court-martial in the first place. He says the provisions of AFI 
36-3203 were not followed correctly in his case and his 
retirement order was inappropriately rescinded. While we defer 


to another agency to discuss this alleged error or injustice, we 
note that while a military justice investigation is being 
conducted, an accused is typically placed on administrative hold 
to prevent separation from the Air Force and to ensure the 
accused is available and accessible to investigator and trial 
counsel. From the perspective of a military justice 
investigation, the administrative hold in the applicant’s case 
served the purpose for which it was intended. It prevented him 
from separating from the Air Force before the investigation (and 
resulting court-martial) could be completed. An examination of 
the record of trial shows quite clearly the court-martial was 
conducted appropriately and his rights were observed throughout 
the process he has not shown a clear error or injustice with 
respect to the court-martial. The applicant pled guilty at 
trial to charges and specifications in accordance with a pre-
trial agreement. The military judge ensured that he understood 
the meaning and effect of his plea and the maximum punishment 
that could be imposed. The Air Force Court of Criminal Appeals 
affirmed the sentence and the United States Court of Appeals for 
the Armed Forces denied the applicant’s petition for review. 

 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant refutes virtually every facet of the Air Force 
evaluations. He contends they contain many erroneous facts and 
he continues to argue that his retirement order should not have 
been rescinded as provisions in AFI 36-3203 provide that 
retirees will not be restricted for reasons listed in Tables 
2.1. and 2.2. He indicates the AFPC/DPSOR advisory is incorrect 
as it relies on provisions of two versions of AFI 36-3203. The 
first version was in effect in 2003 during the matter under 
review and supports his contention that his retirement order 
should not have been rescinded for the reasons above. The 
second version of the AFI was not effective until 2006, well 
after his retirement order was rescinded. Therefore, the 
provisions which AFPC/DPSOR relies upon were not in effect at 
the time. He also takes issue with the AFLOA/JAJM advisory 
opinion and provides arguments and documentation intended to 
demonstrate there were procedural errors in the execution of his 
court-martial and sentence. In support of his response, the 
applicant provides a four page expanded statement and copies of 
excerpts from the Manual for Courts-Martial, documents related 
to his court-martial, excerpts of AFI 36-3203, various 
supporting case law, and excerpts from his record of trial. 

 

A complete copy of the applicant’s response 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. Insufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice regarding the 
applicant’s contention he should not have been restricted from 
retiring. 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 and adopt their rationale as the basis for our 
conclusion that the applicant has not been the victim of an 
error or injustice. We note the applicant’s argument in 
rebuttal indicating the AFPC/DPSOR evaluation relies on two 
different versions of AFI 36-3203, Service Retirements, one of 
which was not in effect during the matter under review, as the 
basis for their recommendation to deny relief. Nevertheless, we 
do not find his assertions or the documentation provided 
sufficient to convince us that his retirement orders should not 
have been rescinded. In this respect, we note AFI 36-3203, 
dated 12 Sep 03, indicates that “Members must not be restricted 
from retiring by reasons in Table 2.1., Table 2.2., or paragraph 
3.2.” While the applicant would like to believe this provision 
implies that he should have been able to retire despite the 
presence of applicable restrictions (under investigation), we 
believe this provision clearly means the presence of such 
restrictions precludes retirement in a case such as the 
applicant’s and was correctly applied in his case. As regards 
to his request for an upgrade to his Dishonorable Discharge, 
insufficient relevant evidence has been presented to demonstrate 
the existence of an error or injustice. We note that this Board 
is without authority to reverse, set aside, or otherwise expunge 
a court-martial conviction. Rather, in accordance with 
Title 10, United States Code, Section 1552(f), actions by this 
Board are limited to corrections to the record to reflect 
actions taken by the reviewing officials and action on the 
sentence of the court-martial for the purpose of clemency. We 
have considered the applicant’s overall quality of service, the 
court-martial conviction which precipitated the discharge, and 
the seriousness of the offenses to which convicted. Based on 
the evidence of record, we cannot conclude that clemency is 
warranted. We note the applicant’s arguments in response to the 
AFLOA/JAJM evaluation alleging there were procedural errors in 
the execution of his court-martial and sentence; however, we 
find no evidence which indicates the sentence of the military 
court was improper or that it exceeded the limitations set forth 
in the Uniform Code of Military Justice (UCMJ). Therefore, we 
find no basis upon which to favorably consider this application. 

 

________________________________________________________________ 

 


THE BOARD DETERMINES THAT: 

 

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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-2010-04685 in Executive Session on 7 Sep 11, under the 
provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 3 Dec 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSOR, dated 20 Apr 11. 

 Exhibit D. Letter, AFLOA/JAJM, dated 13 May 11. 

 Exhibit E. Letter, SAF/MRBR, dated 20 May 11. 

 Exhibit F. Letter, Applicant, dated 6 Jun 11, w/atchs. 

 

 

 

 

 

 Panel Chair