RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-02725 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His DD Form 214, Certificate of Release or Discharge from Active 
Duty, be expunged from his military records and reissued in 
accordance with Air Force Instruction (AFI) 36-3202, Separation 
Documents. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

1. His court-martial in January 2002 was invalid due to it 
occurring after his expiration of term of service (ETS) on 
28 December 2001. AFI 36-3208, Administrative Separation of 
Airman, paragraph 2.8, indicates that airmen should not be 
retained beyond their ETS involuntarily for completion of 
involuntary discharge processing. 

 

2. His DD Form 214 should have been accomplished at his original 
ETS in accordance with AFI 36-3202, Table 2, Rule 1, to wit: To 
prepare and distribute the DD Form 214 if the applicant was 
separated from a period of active duty because of completion of 
service as a member of the Regular Air Force. However, the Air 
Force prepared and distributed a DD Form 214 after the 
applicant’s ETS transpired on 28 Dec 01. 

 

In support of his appeal, the applicant provides copies of his 
DD Form 214, documents extracted from his military personnel 
records, a decisional document from the United States Court of 
Federal Claims, and an extract from AFI 36-3208, Administrative 
Separation of Airmen. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 2 February 1993, the applicant contracted his initial 
enlistment in the Regular Air Force. He served as a Supply 
Management Journeyman. 

 


The applicant was charged with one specification each of the 
following: housebreaking, assault with a dangerous weapon likely 
to produce death or grievous bodily harm, larceny, desertion, 
unlawfully transporting a stolen firearm in interstate commerce, 
and four specifications of forgery. He pled not guilty to 
housebreaking and assault with a dangerous weapon. He pled 
guilty to the remaining charges and specifications. He was tried 
by general court-martial on 10-11 January 2001. He was found 
guilty of all charges and specifications and sentenced to a 
dishonorable discharge, confinement for 10 years and reduction in 
grade to airman basic. 

 

On 3 May 2002, the convening authority approved the findings and 
sentence as adjudged. On 20 February 2004, the Air Force Court 
of Criminal Appeals found the evidence factually insufficient to 
support the applicant’s conviction of assault with a dangerous 
weapon, but found it factually sufficient only as to the lesser 
included offense of assault committed with an unloaded firearm. 
The other findings were affirmed by the Court. The Court 
reassessed the applicant’s sentence to reduction to the grade of 
airman basic, confinement for nine years, and a dishonorable 
discharge. On 21 July 2004, the United States Court of Appeals 
for the Armed Forces denied the applicant’s request for review of 
his conviction, therefore, making the findings and sentence final 
and conclusive. His discharge was ordered on 30 August 2004. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial, indicating there is no evidence of 
an error or injustice. The applicant alleges error in the fact 
of his court-martial, but does not allege error or injustice 
related to the conduct of the court-martial or his appeal. The 
applicant’s allegation of error stems from the fact that his ETS 
was due on 28 December 2001, and his court-martial did not occur 
until January 2002. He cites AFI 36-3208, paragraph 2.8, in 
support of his allegation; however, the applicant’s allegation of 
error is unfounded. AFI 36-3208 involves administrative 
separation of Airmen, which is a different issue than his 
involvement with the military justice system and subsequent 
dishonorable discharge. The applicant's commander preferred 
charges against him on 20 September 2001, well in advance of his 
ETS. As a result, the applicant was properly restricted from 
separating at his ETS due to his pending court-martial. Pursuant 
to AFI 36-3208, paragraph 1.9, the applicant was separated on 1 
October 2004, which is after the completion of appellate review 
of his case. 

 

The Board’s authority to correct records related to court-martial 
is limited. Specifically, section 1552(f)(1) permits the 
correction of a record to reflect actions taken by a reviewing 
authority under the UCMJ. Additionally, section 1552(f)(2) 
permits the correction of records related action on the sentence 


of the court-martial for the purpose of clemency. While clemency 
may be granted, the applicant did not provide justification in 
support of his request. Additionally, to grant clemency in this 
case would be unfair to those individuals who honorably served 
their country while in uniform. Congress' intent in setting up 
the Veterans Benefits Program was to express thanks for veterans' 
personal sacrifices, separations from family, facing hostile 
enemy action and suffering financial hardships. All rights of a 
veteran under the laws administered by the Secretary of Veterans 
Affairs are barred where the veteran was discharged or dismissed 
by reason of sentence of general court-martial. It would be 
offensive to all those who served honorably to extend the same 
benefits to someone who committed a crime such as the applicant’s 
while on active duty. 

 

The AFLOA/JAJM complete evaluation is at Exhibit D. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant disputes the validity of the AFLOA conclusion that 
the cited provisions of AFI 36-3208 somehow do not apply to 
punitive actions under the UCMJ. AFI 36-3208 imposes prohibition 
against involuntary discharge processing after the ETS has 
transpired and a mandates that an airman’s period service has 
expired. In support of this contention, he cites what he 
believes is a similar court case. As for AFLOA’s contention that 
relief in this case is limited to actions of reviewing 
authorities in accordance with 10 USC 1552(f)(1), the injustices 
perpetuated against the applicant under AFI 36-3202 and AFI 36-
3208 constitute actions by reviewing authorities and the Board 
therefore has the authority to take corrective action. 

 

 

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

_________________________________________________________________ 

 

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 injustice. The 
applicant contends that his court-martial was invalid because it 
occurred after his ETS. We took notice of the applicant's 
complete submission, to include his rebuttal response, in judging 
the merits of the case; however, we agree with the opinion and 
recommendation of the Air Force office of primary responsibility 


(OPR) and adopt its rationale as the basis for our decision the 
applicant was not the victim of an error or injustice. The 
applicant’s central argument appears to be that certain 
provisions of AFI 36-3208 should have precluded his retention 
beyond his established ETS; however, we are not convinced that he 
was inappropriately retained beyond his original ETS to face 
court-martial charges. In this respect, we note the comments by 
AFLOA/JAJM indicating that the provisions of AFI 36-3208 cited by 
the applicant pertain only to administrative separations. While 
the applicant takes issue with this opinion on rebuttal, we do 
not find his assertions or the documentation provided sufficient 
to conclude that corrective action is warranted. Charges were 
preferred against the applicant by his commander prior to his ETS 
and, as a result of his pending court-martial, he was 
appropriately restricted from separating at his ETS in accordance 
with the governing instruction. 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-2011-02725 in Executive Session on 22 Mar 12, under the 
provisions of AFI 36-2603: 

 

 , Vice Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Forms 149, dated 12 Jul 11 and 31 Dec 11, 
w/atchs. 

 Exhibit B. Applicant's Master Military Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 16 Aug 11. 

 Exhibit D. Letter, SAF/MRBR, dated 2 Sep 11. 

 Exhibit E. Letter, Applicant, dated 9 Sep 11, w/atchs. 

 

 

 

 

 

 Vice Chair