RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-01667

					COUNSEL:  NONE

		HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

He be allowed a waiver of the minimum retirement time in service and granted special retirement to support his family or be allowed entry into the Return to Duty Program (RTDP).


APPLICANT CONTENDS THAT:

When he was court-martialed he was 19 days away from the mandatory 20 years for retirement and should be provided some form of relief for his 19 years of service.  The RTDP would be the best alternative to retirement, in his opinion.

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 2 Dec 87.

On 13 Nov 07, the applicant pled guilty and was found guilty of two specifications of rape, rape of a child, three specifications of sodomy, forcible sodomy, forcible sodomy of a child, two specifications of indecent acts with a child, indecent assault, and one specification of willfully disobeying a superior commissioned officer, all in violation of Articles 120, 125, 134, and 90, respectively, of the Uniform Code of Military Justice (UCMJ) and was sentenced to a dishonorable discharge and confinement for 30 years and reduction to the grade of airman basic (E-1).  The convening authority approved a dishonorable discharge, reduction to the grade of airman basic (E-1), and 20 years confinement.  Forfeitures were waived for a period of 6 months, release from confinement, or upon expiration of term of service, whichever was sooner.

On 3 Sep 09, the United States Air Force Court of Criminal Appeals reviewed the general court-martial and approved the findings.
On 3 Jun 10, the United States Court of Appeals for the Armed Forces denied the applicant’s petition for grant of review.  

On 7 Jul 10, the general court-martial convening authority ordered the applicant’s dishonorable discharge executed.

On 29 Jul 11, the applicant was furnished a dishonorable discharge and credited with 19 years, 11 months, and 11 days of active service.

In accordance with AFI 31-205, Air Force Corrections System, para 11.6.3.7, to qualify for the RTDP, eligible inmates must have no record of violent or sex offenses.  Only the Air Force Correction and Parole Board may waive this prohibition against sex offenders, who have completed treatment.

A request for post-service information was forwarded to the applicant for review and comment within 30 days.  In response, he describes his life and military service prior to his court-martial conviction.  In addition, he reiterates that has has been a model inmate during his incarceration (Exhibit C).

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


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice.  The OPR can find no error or injustice with the court-martial proceedings which would warrant granting the requested relief.

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

AFPC/DPSOR recommends denial of the applicant’s request to retire in order to provide benefits to his spouse.  The applicant served 19 years, 11 months, and 11 days of Total Active Military Service.  The law that governs retirement of an enlisted member is 10 USC §8914, which states:  “Under regulations to be prescribed by the Secretary of the Air Force, an enlisted member of the Air Force who has at least 20, but less than 30, years of service computed under section 8925 of this title may, upon his request, be retired.”  Accordingly, the applicant’s request should be denied.

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





APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 27 Oct 14 for review and comment within 30 days (Exhibit F).  As of this date, no response has been received by this office.


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 an error or injustice with respect to his request for retirement eligibility or to return to active duty under the return to duty program (RTDP).  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  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.  We find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ).  We have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted.  However, we do not find the evidence presented is sufficient for us recommend granting relief on that basis.  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-2014-01667 in Executive Session on 28 Jan 15, under the provisions of AFI 36-2603:

	

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 18 Mar 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Clemency Information Bulletin.
Exhibit D.  Memorandum, AFLOA/JAJM, dated 9 Jul 14.
Exhibit E.  Memorandum, AFPC/DPSOR, dated 14 Aug 14.
Exhibit F.  Letter, SAF/MRBR, dated 27 Oct 14.