RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-05133 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

His dishonorable discharge (DD) be upgraded to a general (under 
honorable conditions) discharge so that he can regain his 
retirement entitlements. 

 

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APPLICANT CONTENDS THAT: 

 

He served 20 years of honorable service and his misconduct was 
based on an isolated incident of eight seconds in duration. His 
defense counsel coerced him to appear before a judge alone and 
accept a plea bargain in order to save the government time and 
money. He was involuntarily extended beyond his retirement 
date, past his high year of tenure and should have been promoted 
to master sergeant so that the government could have legally 
retained him for trial. Furthermore, the specific time and date 
of the incident for which he was convicted could not be 
determined, so the government extended the time frame of the 
charges alleged. Although, his ex-wife dropped the charges 
against him, the government pursued the case in an effort to 
make an example of him. He is "serving a life sentence dealing 
with society and all it carries for this type of charge." 

 

In support of his request, the applicant provides an expanded 
statement. 

 

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

 

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STATEMENT OF FACTS: 

 

On 8 Nov 78, the applicant contracted his initial enlistment in 
the Regular Air Force. He was progressively promoted to the 
grade of technical sergeant (TSgt). He served as a munitions 
systems craftsman. 

 

On 1 May 99, the applicant was convicted by general court-
martial for committing sodomy with a child under the age of 12 
and committing indecent acts upon the body of a female under the 


age of 16. He was sentenced to a DD, 9 years confinement, 
forfeiture of all pay and allowances, and a reduction in rank to 
airman basic (AB). 

 

On 2 May 01, the applicant submitted an application for 
retirement. On 13 Nov 02, the Secretary of the Air Force (SAF) 
disapproved the applicant’s request for retirement. 

 

The applicant was furnished a DD on 6 Jan 03. 

 

A request for post-service information was forwarded to the 
applicant on 28 Aug 12 (Exhibit F). As of this date, no 
response has been received by this office. 

 

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

 

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AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial, indicating there is no evidence of 
an error or injustice in the processing of the applicant’s 
court-martial. The applicant pled guilty at trial to the 
charges and specifications. In cases which include guilty 
pleas, the military judge ensures the accused understands the 
meaning and effect of his plea and the maximum punishment that 
could be imposed if his guilty plea is accepted by the court. 
The military judge explains the elements and definitions of the 
offenses to which the accused plead guilty; and has the accused 
explain in his own words why he believes he is guilty. Upon the 
court's acceptance of the guilty plea, it will receive evidence 
in aggravation, as well as in extenuation and mitigation, prior 
to crafting an appropriate sentence for the crimes committed. 
The sentencing authority then takes all of these factors into 
consideration when imposing the sentence. 

 

The applicant asserted that his DD was based on an isolated 
incident that lasted for no more than eight seconds. The 
applicant, in fact, pled guilty to sodomizing his pre-teenage, 
step-daughter by forcing her to perform fellatio on him for 
approximately eight seconds, having her fondle his genitalia, 
and kissing his penis through his clothes. The time frame 
properly charged by the government was between, on or about 
1 Jan 95 and on or about 30 Sep 97, presumably supported both by 
the government's evidence and the applicant's own recollection 
at trial. Furthermore, when pending criminal charges, the 
government has the authority to hold over an accused for trial 
by court-martial, without regard to high year tenure 
limitations. Additionally, a court-martial prosecution is not 
bound by the common misconception that an alleged victim can 
simply "drop the charges." Under the UCMJ, the accuser is 
normally the commander, and the government retains sole 


discretion with regard to pursuing or dropping charges of an 
alleged crime. Furthermore, granting clemency in this case 
would be unfair to those individuals who honorably served their 
country while in uniform. Congress’ intent in setting up the 
Veteran’s Benefits Program was to express thanks for veterans’ 
personal sacrifices, separations from family, facing hostile 
enemy actions and suffering financial hardship. All rights of a 
veteran under the laws administered by the Secretary of the 
Veterans Affairs are barred where the veteran was discharged or 
dismissed by reason of the sentence of a general court-martial. 

 

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

 

AFPC/DPSOR recommends denial, noting, based on the documentation 
on file in the master personnel records and the JAJM evaluation, 
the discharge was consistent with the procedural and substantive 
requirements of the discharge instruction and was within the 
discretion of the discharge authority. DPSOR found no error or 
injustice in the applicant's discharge from the Air Force. The 
applicant submitted a retirement application, and the SAF denied 
the applicant’s request. In order for the service member to 
retire or receive retirement benefits he must have received an 
honorable character of service. 

 

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

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 20 Jun 12 for review and comment within 30 days 
(Exhibit E). As of this date, no response has been received by 
this office. 

 

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FINDINGS AND CONCLUSIONS OF THE BOARD: 

 

We have carefully reviewed the applicant’s submission and the 
evidence of record and do not find a sufficient basis to excuse 
the untimely filing of this application. The applicant did not 
file within three years after the alleged error or injustice was 
discovered as required by Title 10, United States Code, Section 
1552 and Air Force Instruction 36-2603, Air Force Board for 
Correction of Military Records. The applicant has not shown a 
plausible reason for the delay in filing, and we are not 
persuaded the record raises issues of error or injustice which 
require resolution on the merits. Thus, we cannot conclude it 
would not be in the interest of justice to excuse the 
applicant’s failure to file in a timely manner. 

 

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DECISION OF THE BOARD: 

 

The application was not timely filed and it would not be in the 
interest of justice to waive the untimeliness. It is the 
decision of the Board, therefore, to reject the application as 
untimely. 

 

________________________________________________________________ 

 

The following members of the Board considered AFBCMR Docket 
Number BC-2011-05133 in Executive Session on 10 Oct 12, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 26 Dec 12, w/atch. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 23 Apr 12. 

 Exhibit D. Letter, AFPC/DPSOR, dated 4 Jun 12. 

 Exhibit E. Letter, SAF/MRBR, dated 20 Jun 12. 

 Exhibit F. Letter, AFBCMR, dated 28 Aug 12, w/atch. 

 

 

 

 

 

 Panel Chair