RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-01648
	XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  NOT INDICATED

________________________________________________________________

THE APPLICANT REQUESTS THAT:

1.  His discharge be changed to a Reserve retirement or a 
medical retirement.  

2.  His General Court-martial (GCM) be stricken from his record.

3.  His grade of Master Sergeant (MSgt) be reinstated.  

________________________________________________________________

THE APPLICANT CONTENDS THAT:

The information obtained by the Air Force Office of Special 
Investigations (AFOSI) and used against him at his GCM was 
obtained illegally in violation of United States Code.

AFOSI fabricated charges in order to make the case against him a 
court-martial event.  The Article 134 charges failed to identify 
a terminal element that would establish a violation.  

When confronted by AFOSI he was advised that someone had filed a 
complaint against him of sexual assault.  Under those 
circumstances, he willingly provided a statement and implicated 
himself without knowing that the statements he made would be 
used against him.  Nonetheless, he was wrong and took 
responsibility for his actions which led to the GCM.  He went 
into the GCM without a deal and did not appeal his conviction or 
seek clemency.  

He had wrongly assumed that his best interests were being looked 
after and that the rule of law would prevail.  He did not 
realize until after he was discharged that numerous laws were 
broken and that his rights were violated under the UCMJ and 
United States Code.

The Investigation Officer (IO) for his Article 32 hearing was 
biased toward the government due to his status as an Air Force 
Reserve Individual Mobilization Augmentee (IMA) legal officer.

The Administrative Discharge Board (ADB) violated Air Force 
Instruction by not having a member of a reserve component as a 
voting member.  The ADB instructions were biased toward a 
finding to recommend discharge.  

Had the ADB not been allowed to happen, he would have been 
placed on the Temporary Disability Retired List (TDRL).  

His GCM conviction reflected a sentence more along the lines of 
an Article 15 than a court-martial.  The judge even recognized 
that his mistakes were isolated in nature and that he should 
remain in the Air Force.

Upon discharge, he immediately filed for an upgrade to his 
discharge, with the Air Force Discharge Review Board (AFDRB), 
which was granted.  Although he didn't receive an "honorable" 
upgrade, he did get a "general" from "Under Other Than Honorable 
Conditions (UOTHC)."  His upgrade was a result of errors and 
injustices because his commander and his staff forced him out 
without following the Air Force Instructions (AFIs).  

As of 10 Mar 10, he was also eligible for a Reserve retirement 
since he completed 20 years of service.  

In Oct 12, he met with the AFDRB in the hopes of getting his 
UOTHC discharge upgraded and to address these inequities.  At 
the AFDRB hearing, he was advised that the only matters that 
were to be discussed would be the discharge actions itself, not 
the events leading up to it.  In Feb 13, he finally received his 
discharge upgrade to general, under honorable conditions, not an 
honorable which he was seeking.  Despite not getting an 
honorable rating, he did get an upgrade and that upgrade would 
not have happened had issues or errors not been present in his 
discharge processing.

The Department of Veterans Affairs (DVA) granted him a service 
connected disability rating of 60 percent in Dec 12.  

He believes there are enough errors and violations of his rights 
to justify his requests.  The excerpt of his records, AFIs, 
Department of Defense Instructions (DODIs) and other documents 
provides a basic foundation for proving the errors and 
injustices he found.

He is asking that the Board correct his military record to 
remove in its entirety the conviction he received under the GCM, 
pay him separation pay, reinstate his rank to E-7 and allow him 
to either be medically retired, as was already approved prior to 
the administrative discharge or transfer him into the Retired 
Reserve pending further legal action.  

He listed numerous reasons as to why he should receive the 
requested relief.

In support of his appeal, the applicant provides a personal 
statement; copies of his discharge package; medical review; 
excerpts from his AFOSI investigation; legal court case, and 
various other documents, including several character statements.

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

________________________________________________________________

STATEMENT OF FACTS:

On 30 Jul 09, the applicant, then a MSgt assigned to Air Force 
Eastern Recruiting Squadron, United States Air Force Reserve, 
was tried by a GCM at McGuire Air Force Base, NJ.  He pled 
guilty and was found guilty of sending obscene material and 
sexually explicit pictures via his government computer, using 
his government computer to store this obscene material, failing 
to maintain high standards of conduct and professionalism with 
another member, and of wrongfully attempting to develop a 
personal, intimate, or sexual relationship with a different 
member, all in violation of Article 92, Uniform Code of Military 
Justice (UCMJ); and of adultery with two women in violation of 
Article 134, UCMJ.  The applicant was sentenced to three months 
hard labor without confinement and a reduction to the grade of 
Technical Sergeant (TSgt/E-6).

On 31 Aug 09, the convening authority approved the findings and 
sentence as adjudged.  The applicant's case was reviewed 
pursuant to Article 69, UCMJ and was found to be supported by 
law.  Therefore, the Judge Advocate General did not direct 
review by the Air Force Board of Review.  

On 20 Jan 10, the applicant faced an ADB.  The discharge board 
recommended the applicant be separated with an UOTHC.  On 21 Jan 
10, the applicant applied for Reserve retirement; however, Air 
Force Reserve Recruiting Service (AFRCRS) and the Air Force 
Reserve Commander AFRC/CC recommended the applicant’s retirement 
request be denied.  

On 26 Jul 10, the applicant’s medical condition was reviewed by 
the Informal Physical Evaluation Board (IPEB), the IPEB 
recommended the applicant be medically retired with a 
compensable percentage for disability of 40.  Because the 
applicant had been recommended for discharge by the ADB a dual-
action process was referred to the Secretary of the Air Force 
Personnel Council (SAFPC).  On 22 Sep 10, SAFPC recommended the 
applicant’s retirement request be denied and he be discharged 
with an UOTHC service characterization.

On 8 Oct 10, the applicant was discharged with an UOTHC.  On 
4 Oct 12, the applicant appeared before the AFDRB who reviewed 
the evidence and upgraded the applicant's discharge 
characterization to a general discharge.

________________________________________________________________

THE AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, stating, in part, that the Board 
does not have the authority or discretion to reverse a court-
martial conviction.

Under 10 U.S.C. § 1552(f), which amended the basic corrections 
board legislation, the Board's ability to correct records 
related to courts-martial is limited.  Specifically, section 
1552(f)(l) 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 to 
action on the sentence of courts-martial for the purpose of 
clemency.  Apart from these two limited exceptions, the effect 
of section 1552(f) is that the Board is without authority to 
reverse, set aside, or otherwise expunge a court-martial 
conviction that occurred on or after 5 May 50 (the effective 
date of the UCMJ).

Prior to accepting his guilty plea, as evidenced by the record 
of trial, the military judge ensured the applicant understood 
the meaning and effect of his plea and the maximum punishment 
that could be imposed if his guilty plea was accepted by the 
court.  The military judge explained the elements and 
definitions of the offenses to which the applicant pled guilty, 
and the applicant explained in his own words why he believed he 
was guilty.  The court received evidence in aggravation, as well 
as in extenuation and mitigation, prior to crafting an 
appropriate sentence for the crimes committed.  The applicant 
made an unsworn statement on his behalf and simply stated he was 
sorry.  The court-martial took all of these factors into 
consideration when imposing the applicant's sentence.  This 
decision was reviewed by the convening authority in accordance 
with Article 60, UCMJ and by a judge advocate under Article 69, 
UCMJ.  The findings and sentence were approved and found to be 
supported in law.

The complete JAJM evaluation is at Exhibit C.

AFPC/DPFD recommends denial, stating, in part, the preponderance 
of evidence reflects that no error or injustice occurred during 
the disability process or the rating applied at the time of the 
board.

DPFD notes that when SAFPC reviewed the case as a dual action in 
regards to being the final separation authority they had the 
option to retain the member on active duty, direct the medical 
retirement or uphold the administrative discharge.  In the SAFPC 
memo dated 22 Sep 10, they upheld the administrative discharge 
action.

The complete DPFD evaluation is at Exhibit D.

The BCMR Medical Consultant recommends denial of the applicant’s 
request for a medical retirement.

The Medical Consultant finds no new or extenuating information, 
within the supplied record, that was not available to the 
previous Boards.  He notes that the applicant, on 21 Jan 10, 
applied for retirement via Virtual Personnel Center-Guard 
Reserve (vPC-GR), requesting a retirement date of 15 Mar 10.

Department of Defense Instruction (DODI) 1338.32: E3.P3.5.1. 
Presumption of Fitness: Application states, except for service 
members previously determined unfit and continued in a permanent 
limited duty status, service members who are pending retirement 
at the time they are referred for physical disability evaluation 
enter the Disability Evaluation System (DES) under a rebuttable 
presumption that they are physically fit.  The DES compensates 
disabilities when they cause or contribute to career 
termination.  Continued performance of duty until a service 
member is approved for length of service retirement creates a 
rebuttable presumption that a service member’s medical 
conditions have not caused career termination.

The applicant, by virtue of his application for retirement date 
of 15 Mar 10 was pending retirement and therefore falls under 
the “Presumption of Fitness” period.  The applicant’s medical 
issues were not the cause of his career termination, but rather 
it was his misconduct.  His Commander’s Impact letter offers 
insight into possible motivation that the applicant’s medical 
condition did not impact this unit’s effectiveness.  The BCMR 
Medical Consultant agrees with his Primary Care Manager’s 
(PCM’s) recommendation that his medical condition warrants a 
Medical Evaluation Board (MEB) consideration.  However great 
care should be exercised to ensure the MEB is not being used to 
circumvent the administrative discharge process.

Furthermore the applicant’s request for retirement conspicuously 
coincides [1 day later] with his discharge board which 
recommended an administrative discharge.  The Medical Consultant 
notes that the MEB processes all started shortly after the 
applicant’s notification of an administrative discharge and 
after his application for retirement.

The applicant has not met the burden of proof of error or 
injustice that warrants the desired change of the record.  The 
actions of the previous boards were consistent with the 
procedural and substantive requirements of the regulations.  The 
applicant provided no facts warranting the changes requested. 
The applicant was under the “period of presumed fitness” and his 
medical conditions played no part in his career termination.

The complete Medical Consultant evaluation is at Exhibit E.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

His medical conditions existed long before any of these issues 
with the GCM or subsequent administrative discharge action took 
place.  Any connection between the two is merely an attempt to 
infer an ulterior motive on his part.  The commander’s impact 
letter was for the MEB process, and should have been free of any 
comments outside of that.  Had he not been persecuted by his 
commander and been the victim of an abuse of power, he would not 
have been discharged and the MEB recommendation would have been 
processed.  

The DRB may not have given him an honorable discharge because of 
the GCM, but they did concur with him that rules were broken and 
that his rights were violated.  Otherwise they would not have 
upgraded him from an UOTHC to a general discharge. 

So any argument that anyone has against him at this point in 
time needs to address his requests as if he had not been 
forcibly discharged.  Because anything else would be avoiding 
the fact that he fought and won the administrative discharge 
that force him out of the Air Force.  Also, keep in mind, the 
GCM verdict did not result in a discharge or jail time.  The 
reason is the case against him only existed because he admitted 
to what he did under false pretense. 

The AFOSI conducted an illegal wiretap of his emails, off-base 
without a warrant.  They also told a witness what to say when he 
didn’t do what they wanted to do, which brought up the issue of 
entrapment, which the IO brushed aside.  According to the AFI, 
his ADB panel was supposed to have at least one member of the 
reserve as part of it, and this was not done. 

The legal office on McGuire AFB and the Air Force Reserve 
Command did all they could to ensure that he was punished as 
harshly as they could, regardless of what the rule of law was. 
Some of the same people who are devising opinions on his case 
are probably the same people who were involved in his dual-
action processing.  Ironically, some of the DRB members were 
also involved in his dual-action processing. 

If he had not been forced out in Oct 10 by the ADB, he would 
have been medically retired and placed on the TRDL at 40 percent 
disability.  Or, would also had the option to transfer into the 
Retired Reserve, something by law that he should be allowed to 
do now; however, the Air Reserve Personnel Center (ARPC) is 
blocking it.  Either way, he would have the pride of being a 
retired member of the armed forces, having served 20 years.  The 
applicant states the DRB’s upgrade of his discharge cannot be 
overlooked.  He was a victim of an abuse of power.

In an electronic-mail, the applicant notes that he does not 
believe that his dual-action process was handled properly.

The applicant’s complete response, with attachment, 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 timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of error or injustice to warrant 
disturbing the record.  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.  Regarding his request for 
a medical retirement and transfer to the Retired Reserve, the 
applicant has not provided substantial evidence showing that 
SAFPC’s decision to uphold the administrative discharge review 
action was in error.  Regarding is request to reinstate his 
grade to MSgt, the applicant has not provided any evidence which 
would lead us to believe his demotion to the grade of TSgt was 
unduly harsh, or disproportionate to the offenses committed.  
The applicant’s case has undergone an exhaustive review by the 
Air Force Offices of Primary Responsibility (OPRs) and we did 
not find the evidence provided, sufficient to overcome their 
assessment of the case.  Therefore, we agree with the opinions 
and recommendations of the Air Force OPRs and adopt their 
rationale as the basis for our decision that the applicant has 
failed to sustain his burden of having suffered either an error 
or injustice.  In view of the above and 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-2013-01648 in Executive Session on 20 Feb 13, under 
the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Mar 13, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 10 May 13.
    Exhibit D.  Letter, AFPC/DPFD, dated 10 May 13.
    Exhibit E.  Letter, BCMR Medical Consultant, 
                dated 8 Jun 13.
    Exhibit F.  Letter, SAF/MRBR, dated 11 Jun 13.
    Exhibit G.  Letter, Applicant, undated, w/atch. 




                                   Panel Chair