DOCKET NUMBER: BC-2003-03941 
COUNSEL:  NONE 
HEARING DESIRED:  NO 

 
                       RECORD OF PROCEEDINGS 
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 
IN THE MATTER OF: 
   
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
His retired rank of senior airman (SrA) be upgraded to technical 
(TSgt) and he be compensated for his period of confinement. 
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
He had only one incident with the law in his life.  He retired 
after  24  years  of  honorable  service.    His  unlawful  267-day 
confinement violated his pretrial agreement.  He was denied his 
Fifth  Amendment  rights  because  he  was  not  afforded  a  certified 
judge.    An  appellate  court  found  the  sentence  unlawful  and  set 
it  aside.    The  case  was  dismissed  but  his  TSgt  grade  was  not 
restored.    This  is  unjust  and  should  be  remedied.    His 
performance reports show he served satisfactorily in that grade.  
He could not make an application until the time for advancement 
on the retired list came in 2001. 
 
In  support  of  his  appeal,  the  applicant  provides  a  personal 
statement;  copies  of  extracts  from  his  master  personnel  record 
and the record of trial (ROT). 
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
________________________________________________________________ 
 
STATEMENT OF FACTS: 
 
On 27 Oct 71, the applicant enlisted in the Regular Air Force, 
and was progressively promoted to the grade of TSgt with a Date 
of  Rank  (DOR)  of  1  Sep  88.    His  performance  reports  for  the 
periods  31  Oct  80  through  17  Oct  90  reflect,  with  four 
exceptions  the  highest  overall  ratings.    During  the  period  in 
question,  he  was  assigned  to  the  Mission  Support  Squadron 
(MSSQ),  as  the  assistant  chief  of  the  Records  Management 
Section. 
 

Charge  I:  The  applicant  committed  the  offense  of  carnal 

Charge II:  He committed sodomy with a child under the age 

Additional  charge:  The  applicant  raped  a  female  under  the 

On or about 1 Jun 91, the applicant was approved for retirement 
effective 1 Nov 91.   
 
On  29  Aug  91,  the  applicant  was  arrested  by  civil  authorities 
and confined in the local civil jail pending a court hearing and 
on 30 Aug 91, he was released. 
 
The following charges were preferred on the applicant:  
 
 
knowledge, on or about 6 Aug 91, and pled not guilty. 
 
 
of 16 years, on or about 6 Aug 91, and pled not guilty. 
 
 
Charge III:  He committed an indecent act upon the body of 
a female under the age of 16 years, not his wife, with intent to 
gratify his sexual desires, on or about 6 Aug 91, and pled not 
guilty. 
 
 
age of 16 years, on or about 6 Aug 91 and pled not guilty. 
 
On 4 Sep 91, the applicant’s retirement order was rescinded and 
he was placed on administrative hold. 
 
On 31 Mar 92, a pretrial agreement withdrew Charges I and II and 
the  additional  charge  and  contained  a  sentence  cap  of  a  bad 
conduct  discharge  (BCD),  confinement  as  adjudged,  reduction  to 
the  grade  of  airman  basic  and  no  forfeiture.    Any  reduction 
below  SrA,  any  confinement,  and  execution  of  the  BCD  was 
upon 
suspended 
victim, 
participation  in  a  sexual  offender  counseling  program,  and 
commission of no new offenses. 
 
On 1 Apr 92, in a general court-martial, the applicant was tried 
and pled guilty to Charge III.  The adjudged sentence was a BCD, 
confinement  for  three  years,  and  reduction  to  the  grade  of 
airman basic, and only so much of the sentence as provided for a 
BCD,  three  years  of  confinement,  and  reduction  to  the  grade  of 
airman  basic  was  approved.    However,  execution  of  the  sentence 
extending  to  the  confinement  was  suspended  for  five  years,  at 
which  time,  unless  the  suspension  was  sooner  vacated,  would  be 
remitted  without  further  action;  and  execution  of  the  sentence 
extending  to  the  BCD  and  reduction  below  the  grade  of  SrA  was 
suspended  until  the  occurrence  of  the  events  as  agreed  in  the 
pretrial agreement: (1) completion of a program of alcohol abuse 
rehabilitation; (2) at his own expense, he complete a program of 
sexual offender treatment approved by the convening authority’s 
staff  judge  advocate  (SJA),  and  (3)  he  pay  restitution  to  the 

contingent 

restitution 

to 

the 

 
 

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victim  in  the  sum  of  $3,000.00,  at  which  time,  unless  sooner 
vacated, would be remitted without further action. 
 
The convening authority deviated from the pretrial agreement, on 
14  May  92,  and  approved  a  BCD,  three  years  confinement,  and  a 
reduction  to  the  grade  of  airman  basic,  but  suspended  the 
confinement for five years without conditions.  The execution of 
the BCD and reduction below the grade of SrA was also suspended 
until  the  occurrence  of  the  requirements  of  completing  the 
alcohol  rehabilitation  program,  the  sex  offender  treatment 
program, and the payment of restitution.  Also, on 14 May 92, he 
was advised that he was being placed on appellate leave status, 
pending completion of appellate review. 
 
The  appellate  review  was  completed,  on  12  Jan  93,  when  the 
United  States  Court  of  Military  Appeals  (COMA)  denied  his 
review. 
 
On  19  Feb  93,  the  special  court-martial  (SCM)  convening 
authority recalled the applicant from appellate leave status for 
the  purposes  of  conducting  an  Article  72  hearing  to  consider 
vacating his suspended sentence. 
 
The  hearing  was  held,  the  applicant  was  represented  by  both 
military  and  civilian  defense  counsels  and  the  SCM  convening 
authority  recommended  the  suspended  sentence  be  vacated;  the 
suspension of the BCD and the three year confinement was vacated 
and ordered executed, on 21 Jun 93. 
 
The  applicant’s  counsel  petitioned  to  the  Air  Force  Court  of 
Military  Review  (AFCMR)  for  a  deferment  of  the  confinement 
pending an appellate review; however, the request was denied. 
 
The  COMA,  on  further  consideration,  noted  that  based  on  the 
convening  authority’s  court-martial  order,  confinement  had  been 
suspended without conditions and therefore, the confinement was 
unlawful  and  void.    The  COMA  did  not  address  the 
characterization  of  the  discharge  or  the  applicant’s  grade.  
However,  the  COMA  indicated  any  decision  to  vacate  the 
suspension  had  to  be  based  on  some  future  failure  by  the 
applicant  to  comply  with  the  terms  of  the  suspension,  until 
13 May 97.   
 
As  a  result,  the  applicant  was  released  from  confinement  on 
17 Mar  94.    The  General  Court-Martial  Order  No.  9,  dated 
21 Jun 93,  was  set  aside.    In  addition,  they  found  the 
following; 1) no convening authority may apply the conditions on 
suspension to the confinement element of the adjudged sentence; 
2)  the  period  of  suspension  of  the  punitive  discharge  and 
reduction  in  grade,  during  which  the  applicant  was  required  to 
participate  satisfactorily  in  an  acceptable  sex  offender 

 
 

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rehabilitation  program,  was  limited  to  five  years;  3) 
involuntary  appellate  leave  was  to  be  applied  to  the  applicant 
so long as the sentence included a suspended punitive discharge; 
4)  any  decision  to  vacate  the  suspension  was  based  on  some 
future failure by the applicant to comply with the terms of the 
suspension, until 13 May 97. 
 
The applicant, as an inducement for his retirement package to be 
approved,  agreed  to  waive  his  rights  to  be  advanced  on  the 
retired  list  pursuant  to  Title  10,  USC,  Section  8964.    The 
Secretary  of  the  Air  Force  Personnel  Council  (SAFPC)  accepted 
his  retirement  application  and  found  that  he  did  not  serve 
satisfactorily  in  any  grade  higher  than  SrA  within  the  meaning 
of Title 10, USC, Section 8964. 
 
The  applicant  was  relieved  from  active  duty,  on  30  Sep  95,  in 
the grade of SrA.  He was credited with 23 years, 11 months, and 
3 days of active service, excluding one day of lost time. 
 
In  a  response  to  the  applicant,  the  Defense  Finance  and 
Accounting  Service  (DFAS)  advised  the  applicant  that  he  may  be 
entitled  to  additional  pay  pending  completion  of  a  final 
computation of pay and allowances.  Subsequently, he was advised 
that his records were corrected to reflect only one day of lost 
time and that his retired pay had been correctly computed.  In 
addition, their record reflect the applicant was due additional 
pay  and  allowances  based  on  his  overturned  confinement, 
appellate  review  and  BCD  and  that  his  payment  would  be  made 
directly to him. 
 
________________________________________________________________ 
 
THE AIR FORCE EVALUATION: 
 
AFLSA/JAJM  now  (AFLOA/JAJM)  recommends  denial,  noting,  that 
although  the  COMA  ordered  the  applicant  released  and  ruled 
regarding  the  pretrial  agreement,  the  COMA  did  not  address  the 
applicant adjudged grade of SrA.  If the applicant contends, the 
entire pretrial agreement was to be thrown out, what remains is 
the  adjudged  sentence  in  which  he  would  have  been  reduced  to 
airman  basic.    He  affirmatively  waived  his  right  to  request  an 
upgrade  of  his  rank  pursuant  to  Title  10,  USC,  Section  8964.  
Given the nature of the offenses and the waiver of his right to 
request an upgrade of his rank, no clemency is warranted. 
 
The complete JAJM evaluation is at Exhibit C. 
 
AFPC/DPPRRP (now DPSOR) recommends denial, noting the applicant 
was  reduced  in  rank  from  TSgt  to  SrA  and  he  applied  for 
retirement in that grade.  He waived his right’s to advancement 
to the highest grade held while on active duty and, prior to his 

 
 

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retirement,  SAFPC  determined  he  would  not  be  advanced  to  any 
grade  higher  than  SrA  when  his  active,  plus  service  on  the 
retired list, totaled 30 years.   
 
The complete DPPRRP evaluation is at Exhibit D. 
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 
 
On  4  Apr  04,  the  applicant  requested  his  application  be 
administratively closed, see attachment at Exhibit F. 
 
By  letter,  dated  20  Sep  10,  which  we  received  20  Oct  11,  the 
applicant  requested  his  case  be  reopened;  he  notes  that  he  has 
been retired since Oct 95.  He believes his performance reports 
provides  proof  that  he  served  in  the  grade  of  staff  sergeant 
(SSgt)  and  TSgt  in  an  outstanding  manner.    He  notes  that  his 
performance  reports  reflect  overall  ratings  of  “9”  on  eight 
reports  and  overall  ratings  of  8  on  the  remaining  four.    He 
request to be restored to the grade of SSgt with any back pay. 
 
In  support  of  his  appeal,  the  applicant  provides  extracts  from 
his master personnel record, including copies of General Court-
Martial Order No 16, dated 1 Nov 95 and his enlisted performance 
reports rendered for the periods 31 Oct 80 through 17 Oct 90.   
 
The  applicant’s  complete  response,  with  attachments,  is  at 
Exhibit G.  
 
________________________________________________________________ 
 
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 error or injustice.  We took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we agree with the opinions 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.  in 
addition,  when  considering  the  egregiousness  of  the  charge 
surrounding  the  applicant’s  court-martial  and  subsequent 
discharge,  the  pre-trial  agreements,  the  COMA  ruling  and  the 
agreement  made  with  SAFPC  to  waive  his  advancement  on  the 

 
 

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retired  list  pursuant  to  Title  10,  USC,  Section  8964  to  secure 
his  retirement,  we  conclude  that  relief  beyond  that  already 
afforded to the applicant is not warranted.  Additionally, while 
the applicant asserts that his performance reports validate his 
satisfactory service in the grade of SSgt and TSgt, in our view, 
the egregious nature of the offenses he was found guilty of by 
court  martial  clearly  overcome  the  service  documented  in  these 
reports.  Therefore, in the absence of 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  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-2003-03941  in  Executive  Session  on  15  November  2012, 
under the provisions of AFI 36-2603: 
 
The following documentary evidence was considered: 
 
    Exhibit A.  DD Form 149, dated 19 Nov 03, w/atchs.  
    Exhibit B.  Applicant's Master Personnel Records. 
    Exhibit C.  Letter, AFLSA/JAJM, dated 24 Feb 04. 
    Exhibit D.  Letter, AFPC/DPPRRP, dated 2 Mar 04. 
    Exhibit E.  Letter, SAF/MRBR, dated 12 Mar 04. 
    Exhibit F.  Letter, AFBCMR, dated 19 Apr 04, w/atch. 
    Exhibit G.  Letter, Applicant, dated 20 Sep 10. 
 
 
 
 
                                   Panel Chair 

 
 

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