RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-00193 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

He be allowed to retire from the Air Force. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. On 15 July 2001, he became a recruiter and was very 
successful until 6 September 2003, when the Office of Special 
Investigations (OSI) began an investigation into allegations he 
had violated Air Education and Training Command Instruction 
(AETCI) 36-2909, Professional and Unprofessional Relationships 
(alleging an inappropriate relationship with two applicants). 

 

2. In May 2005, he was convicted of most of the specifications 
and was sentenced to a dishonorable discharge, confinement for 
18 months, and reduction to the grade of airman basic. During 
sentencing, his attorneys argued to save his retirement and 
requested he not be discharged from the military and the jury 
seemed to agree he should be allowed to retire. Prior to their 
sentence recommendation, the jury reduced him to the grade of 
senior airman and even asked questions regarding what retirement 
plan he was under. 

 

3. He has attempted to file for retirement several times only to 
be told by the personnel office he was ineligible. If the 
12 months of confinement given by the second court-martial for 
bad time is deducted, he still has over 20 years and thus is 
eligible for retirement. Also, AFI 36-3208, Administrative 
Separation of Airmen, clearly states “you may not involuntarily 
hold someone whose ETS has expired just to do a discharge 
action.” His expiration term of service (ETS) expired in 06. 

 

4. He questions “the fairness and impartiality of the convening 
authority in deciding the action on his case when he had already 
agreed to initiate a discharge board.” He believes the military 
justice system should be fair and impartial to all of its 
members, not just to higher ranking individuals. There are two 
cases of general officers who were treated more leniently than 
he was and allowed to retire. 

 

5. He states the mother of his daughter died suddenly and his 
daughter has had serious emotional problems since her mother’s 
death. His daughter is still receiving assistance for her 


emotional problems and he will be unable to continue her care 
without the assistance of Tri-care. 

 

In support of his request, the applicant provides a copy of his 
DD Form 214, Certificate of Release or Discharge from Active 
Duty, a personal statement, AF Form 1359, Report of Result of Trial; copies of memorandums, and an Air Force Times news 
article. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 28 August 1986, the applicant enlisted in the Regular Air 
Force. 

 

In 2002, the applicant, then a technical sergeant was a 
recruiter located near Patrick Air Force Base, Florida. On 
several diverse occasions that year, he was alleged to have 
engaged in inappropriate activities with female recruits, 
including sexual activities, providing alcohol, going to a club 
called “Bare Assets,” and asking one of the recruits if she 
could arrange dates for him with her friends. He was eventually 
charged with 10 specifications of violating a lawful general 
regulation for engaging as a recruiter in these inappropriate 
activities with applicants to the Air Force, in violation of 
Article 92, Uniform Code of Military Justice (UCMJ); and two 
specifications of wrongfully providing alcohol to minors, in 
violation of Article 134, UCMJ. All but one of the violations 
of Article 92, UCMJ, were referred to trial by general court-
martial. 

 

On 14 May 2005, the applicant was found not guilty of one 
specification of engaging unprofessionally toward one of the 
female recruits, but found him guilty of both charges and the 
remaining specifications. He was sentenced to a dishonorable 
discharge, confinement for three years, forfeiture of all pay 
and allowances and reduction to the grade of airman basic. 

 

On 16 April 2007, the Air Force Court of Criminal Appeals 
(AFCCA) heard oral arguments in the applicant’s case. On 
16 August 2007, the AFCCA issued a decision in his case, setting 
aside the findings and sentence and authorized the convening 
authority to order a rehearing of the case. 

 

On 1 Feb 08, the applicant was notified of his commander’s 
intent to recommend he be discharged from the Air Force for 
commission of serious offenses and issued an Under-Other-Than-
Honorable-Conditions (UOTHC) discharge. The specific reasons 
for this action were: 1) Between on or about 1 Jun 02 and on or 
about 30 Aug 02, he violated a lawful general regulation by 


developing an unprofessional relationship and engaging in sexual 
activities with and providing alcohol to Ms. N, then an 
applicant or recruit of the Air Force; 2) On or about 17 Jul 02, 
violated a lawful general regulation by going to “Bare Assets,” 
a club, with Ms. N, on a personal social basis, who was then an 
applicant or recruit with the Air Force; 3) Between on or about 
1 Feb 02 and on or about 14 Jul 02, violated a lawful general 
regulation by developing an unprofessional relationship and 
engaging in sexual activities with and providing alcohol to Ms. 
B, then an applicant or recruit with the Air Force. 

 

For the above misconduct, he was convicted by a general court-
martial on 17 Jan 08. His sentence included confinement for one 
year, reduction to the grade of airman first class and a 
reprimand. On 8 Feb 08, the applicant acknowledged receipt of 
the notification, consulted counsel and waived his right to 
submit a statement on his own behalf. 

 

On 3 Apr 08, the convening authority approved the findings and 
sentence as adjudged. The applicant was credited “with any 
portion of the punishment served from 14 May 05 to 16 Aug 07, 
under the sentence adjudged at the former trial of his case.” 
Due to this fact, the applicant was not required to serve any 
more time in confinement. 

 

On 3 Jun 08, the applicant was discharged from the Air Force 
with an honorable discharge in the grade of airman first class. 
He served 21 years, zero (0) months and 26 days of total active 
service. 

 

The remaining relevant facts pertaining to this application 
extracted from the applicant’s military records, are contained 
in the letters prepared by the appropriate offices of the Air 
Force at Exhibits D and E. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigations (FBI), Clarksburg, WV, provided a copy of an 
Investigative Report (Exhibit C). 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM addressed the applicant’s involvement in the military 
justice system. JAJM states the applicant alleges error or 
injustice in the ultimate disposition of his military career; he 
was administratively discharged with an honorable discharge, but 
was not permitted to retire. He does not protest his innocence 
or allege error or injustice in the course of his involvement in 
the military justice system. The Record of Trial indicates 
there was no error or injustice in the applicant’s case. In 
fact, the applicant’s case is a very good example of how the Air 
Force strives through its military justice system to balance the 
need for good order and discipline with the rights of Airmen. 


At his court-martial, the applicant pled not guilty to the 
offenses and was able to have a panel of officer members decide 
whether the evidence showed, beyond a reasonable doubt, the 
applicant had committed the offenses. The members heard all of 
the evidence and found the applicant guilty of the charges and 
all but one of the specifications and then imposed what they 
determined to be an appropriate sentence. 

 

After the trial, the applicant’s case was automatically referred 
to the Air Force Court of Criminal Appeals (AFCCA). After the 
AFCCA found an error in the applicant’s trial, they set aside 
the findings and sentence and a rehearing of the case was 
ordered. At the rehearing, the applicant was afforded the same 
protections and rights as he had at the original trial. Even 
though the members found him guilty of seven specifications of 
violating a lawful general regulation, the applicant did not 
receive a punitive discharge as part of his sentence. As with 
the original trial, the post-trial processing of the rehearing 
shows no evidence of error or injustice. 

 

To the extent that there was error in the process of the 
applicant’s court-martial, that error was discovered by the 
applicant’s appellate defense counsel and corrected by the 
AFCCA. The applicant’s allegation of injustice pertains to the 
processing of his administrative discharge and the denial of his 
requests for retirement. Both of these actions are separate 
from the court-martial process. They depend on the outcome of 
the court-martial only insofar as those administrative actions 
are not typically commenced unless a punitive discharge is not 
included in the sentence and until the court-martial post-trial 
processing is completed. 

 

The applicant has also asked for clemency from the Board on the 
basis of the hardship of his family situation. Clemency may be 
granted under 10 U.S.C. 1552 (f)(2), but the ultimate request of 
clemency from the applicant really goes to the issue of his 
discharge and retirement. The applicant has not provided 
sufficient justification for a request of clemency with regard 
to the outcomes of the court-martial or rehearing. Since the 
Board cannot grant the ultimate act of clemency with regard to 
the court-martial (expungement), any act of clemency on the 
court-martial could only address the sentence received by the 
applicant. Since the applicant did not receive a punitive 
discharge, there is little sense in granting clemency with 
regard to the confinement (already served), reduction in grade 
or reprimand. In any case, the sentence imposed by the members 
was appropriate to the offenses committed by the applicant. 

 

The complete JAJM evaluation is at Exhibit D. 

 

HQ AFPC/DPSOR recommends denial of the applicant’s request to 
retire. DPSOS states the applicant’s record shows he reenlisted 
on 19 Jun 01 for five years, making his expiration term of 
service (ETS) 18 Jun 06. With 8 months, 12 days lost time from 


14 May 05 to 26 Jan 06, his ETS would be adjusted from 
18 Jun 06 to 3 Mar 07. However, because the applicant requested 
appellate review and was granted the rehearing of his case, the 
Air Force extended his enlistment as provided in AFI 36-2606, Reenlistment in the United States Air Force. 

In Feb 08, the applicant attempted to apply for retirement but 
his service dates had not yet been adjusted for his lost time 
from 14 May 05 to 26 Jan 06, for appellate review, or for court-
martial action related to the rehearing. On 4 Mar 08, DPSOR 
confirmed the service date verification office had not received 
the AF IMT 2098, Duty Status Change, showing the applicant’s 
return to duty on 26 Jan 06. 

 

The applicant’s Total Active Federal Military Service Date 
(TAFMSD) was changed from 28 Aug 86 to 8 May 87, after 
adjustment for lost time, making him first eligible for 
retirement effective 1 Jun 07. 

 

AFI 36-3203, Service Retirements, table 2.2., rule 11 authorizes 
an enlisted member to request to retire in lieu of an 
administrative discharge action when the member is retirement 
eligible. If the member has an ETS, in accordance with (IAW) 
AFI 36-2606, figure 4.1., the member may voluntarily request to 
extend the enlistment in one-month increments to await the 
outcome of the SAF decision as to whether the member will retire 
in lieu of the discharge or be discharged. The applicant had an 
ETS of 3 Jun 08 and did not apply for a retirement in lieu of 
the discharge action or request extensions to await the outcome 
of the SAF decision as to whether he would be retired or 
discharged. As a result, the applicant was discharged on his 
ETS of 3 Jun 08. 

 

Members who are facing an administrative discharge action who do 
not elect to request a retirement in lieu of the discharge 
action or who do not voluntarily request extensions to await a 
SAF decision concerning the retirement in lieu of the discharge 
action, receive a DD Form 214, showing a discharge date of their 
ETS. 

 

The applicant may have chosen to be discharged on his ETS in 
order to secure the “honorable” characterization of service to 
remain eligible for Department of Veterans Administration (DVA) 
benefits rather than risk a lower characterization of service 
from an administrative discharge board. In the notification 
memorandum dated 1 Feb 08, the applicant’s commander warned the 
applicant he was recommending a “UOTHC” discharge and the 
administrative discharge board could result in this action. His 
commander also informed him of his right to apply for retirement 
in lieu of the administrative discharge action. 

 

Because the applicant did not submit a retirement application 
and did not voluntarily extend in one-month increments to await 
the outcome of the SAF decision concerning whether he could 
retire in lieu of the discharge action, the applicant forfeited 


his right to retire in favor of an “honorable” discharge when he 
may have been given a UOTHC discharge by the discharge board. 

 

The decision of the court-martial rehearing to drop the 
“dishonorable discharge” from the applicant’s sentence is a 
separate action from the proposed administrative discharge. It 
is clear from the applicant’s actions he chose to be discharged 
on his ETS with an “honorable” characterization of service 
rather than to possibly face a UOTHC discharge. 

 

The complete DPSOR evaluation is at Exhibit E. 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 15 April 2011 for review and comment within 30 days 
(Exhibit F). As of this date, this office has not received a 
response. 

________________________________________________________________ 

 

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 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. After a thorough review of the evidence of record and 
the applicant’s complete submission, we are not persuaded that 
his records should be changed. In this regard, we note that the 
discharge appears to be in compliance with the governing 
regulation in effect at the time and we find no evidence to 
indicate that the applicant’s discharge from the Air Force was 
inappropriate, unduly harsh, or disproportionate to the offenses 
committed. The applicant’s contentions were duly noted; however, 
we do not find these assertions, in and by themselves, 
sufficiently persuasive to override rational provided by the Air 
Force. Therefore, we agree with the opinions and recommendations 
of the 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. In the absence of 
persuasive evidence to the contrary, we find no 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 Docket Number 
BC-2011-00193 in Executive Session on 23 Aug 11, under the 
provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-00193 was considered: 

 

 Exhibit A. DD Form 149, dated 19 Jan 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. FBI Report, dated 19 Apr 11. 

 Exhibit D. AFLOA/JAJM, Letter, dated 25 Feb 11. 

 Exhibit E. AFPC/DPSOR, Letter, dated 11 Mar 11. 

 Exhibit F. SAF/MRBR, Letter, dated 15 Apr 11. 

 

 

 

 

 

Panel Chair