RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-03297

		COUNSEL:  

		HEARING DESIRED:  NO 




APPLICANT REQUESTS THAT:

His separation from the Air Force with a general (under honorable conditions) discharge be withdrawn and his records be changed to show he was retired with a general (under honorable conditions) discharge, and he receive all back pay and allowances that he would be entitled. 



APPLICANT CONTENDS THAT:

He has been punished in a manner more severe than the crimes committed.  His punishment, confinement, demotion from technical sergeant to senior airman, and a reprimand for the offenses he committed were unduly severe and not congruent to the punishments of others similarly situated.  Twenty years of exemplary service should not be thrown away because of discrete instances of misconduct.  He has taken full accountability for his actions and wants only to be allowed to retire with the benefits commensurate to his contribution to the Air Force.  His stellar performance in the Air Force coupled with his remorse and willingness to reform his actions should be taken into account affording him clemency in deciding his retirement.  

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



STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 15 Aug 84.

On 9 Mar 04, the applicant was convicted in a special court-martial of violating Article 92, UCMJ, (failure to obey a lawful general regulation) by wrongfully displaying pornographic images on a government computer on or about 1 Oct 01, and two specifications of violating Article 93, UCMJ, (maltreatment of a subordinate).  He was sentenced to four months confinement, reduction to senior airman and a reprimand. 

On 23 Mar 04, the applicant’s commander initiated discharge action pursuant to AFI 36-3208, paragraph 5.52.3 (commission of a serious offense), citing the offenses for which the applicant was found guilty by the special court martial and two additional recommending an under other than honorable conditions (UOTHC) discharge.

On 1 Apr 04, the applicant exercised his right to an administrative discharge board and requested lengthy service probation (LSP) if a discharge was approved.  

On 12 August 04, the discharge board convened and determined the applicant had committed all of the alleged misconduct and recommended he be separated from the Air Force without probation and rehabilitation with an general (under honorable conditions) discharge.

On 8 Sep 04, the discharge authority approved the applicant’s discharge, but the discharge was held in abeyance because the applicant had requested LSP.

On 29 Dec 04, because the applicant attained 20 years of active service while his request for LSP was being processed, he requested to retire rather than be discharged.

On 3 Feb 05, the discharge authority recommended denial of the retirement request and recommended execution of the approved discharge, and, on 28 Mar 05, the Major Command Director of Personnel office concurred with the discharge authority’s recommendation. 

On 13 May 05, in accordance with AFI 36-3203, Service Retirements,
the Secretary of the Air Force Personnel Council (SAFPC) reviewed the applicant’s request for retirement in lieu of discharge, and recommended his application to retire be denied and he be discharged from the Air Force. 

On 19 May 05, the Secretary’s designee disapproved the applicant’s request to retire and directed that his previously approved administrative discharge be executed.

On 01 Jun 05, the applicant was furnished a general (under honorable conditions) discharge and was credited with 20 years, 6 months, and 20 days of active service.

The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.



AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial indicating there is no evidence of an error or an injustice.  While the applicant’s counsel argues that his client has been treated differently than others similarly situated, there is no way to determine why commanders of other airmen in the cases mentioned in the applicant’s application did not elect to initiate discharge.  Based on evidence provided, the discharge actions taken by the applicant’s commander were appropriate, in accordance with AFI 36-3208, and the applicant was afforded the opportunity to apply for retirement in lieu of discharge as outlined in AFI 36-3203, Service Retirements.  There is no evidence of error or injustice in the applicant’s record.  

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



APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel points out that the applicant did not allege any procedural or legal violation with respect to how the court martial was handled.  The applicant’s contention has always been about fairness.  The applicant provides a supporting statement from a member of his 2004 defense team indicating that the applicant’s offenses were not the most egregious in nature, as evident by the fact that the military judge’s sentencing did not include any punitive discharge.  Additionally, the expeditious administrative discharge process (less than three weeks from the announcement of the sentence) did not give the applicant any chance to prove he had been rehabilitated, which is one of the five principles of court martial sentencing.  Therefore, reviewing authorities should grant the requested relief (Exhibit E).



FINDINGS AND CONCLUSIONS OF THE BOARD:

After careful consideration of applicant’s request and the available evidence of record, we find the application untimely.  Applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code (U.S.C.), §1552 and Air Force Instruction 36-2603.  Applicant has not shown a plausible reason for the delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits.  Thus, we cannot conclude it would be in the interest of justice to excuse the applicant’s failure to file in a timely manner.




THE BOARD DETERMINES THAT:

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-2013-03297 in Executive Session on 23 Sep 14, under the provisions of AFI 36-2603:

	

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 26 Apr 13, w/atch.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSOR, dated 9 Mar 14, w/atchs.
Exhibit D.  Letter, SAF/MRBR, dated 22 May 14.
	Exhibit E.  Letter, Counsel, dated 15 Aug 14, w/atch.