Legal Question in Military Law in California

Upgrade Other Than Honorable

Hello,

I recently separated from the Air Force via a resignation in lieu of (RILO) request, rather than face trial by court-martial. According to my ADC, seldom are RILOs granted, as they must pass through the Office of the SecAF. As a result, I received an OTH discharge.

What got me to this point was fraternization. Others involved included another Officer, and several Enlisted. While I was fully honest when questioned, I was put into a process finally receiving my OTH discharge. Others received LOR's and Arty 15's for not saying anything.

From a legal standpoint, I know i should have kept my mouth shut until after consultation with my ADC.

My questions are:

I know most upgrades stem from a board deeming a characterization of discharge as inequitable or improper, but the fact of the matter is that on one occasion, I fratted...what happened after the fact, is that i was completely honest during investigation but ultimately faced a court-martial unless I opted to take an OTH.

If upgrade is even remotely possible, what steps should i take to this? (do include legal consultation)

Sorry for the length of this post, and thank you for your consideration.


Asked on 1/20/09, 1:06 am

2 Answers from Attorneys
Philip D. Cave Military Law & Justice

Re: Upgrade Other Than Honorable

Maybe you have an argument based on equity in comparing the other results.

Your ADC is correct that the AF is pretty tough on officer cases.

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Answered on 1/20/09, 1:15 am
Donald G. Rehkopf, Jr. Brenna, Brenna & Boyce, PLLC

Re: Upgrade Other Than Honorable

Your request is slightly confusing. It appears that your RILO was in fact approved, only that you got an OTHC discharge versus a General or Honorable. That had to have come from the SecAF.

The AF is VERY inconsistent on how they handle Officer frat cases - depending on your base / MAJCOM etc. But, without more, the policy is NOT to court-martial an officer for "simple" frat. BUT, this is NOT a secure forum and don't disclose any more specifics because it is not privileged or protected.

Your rank, position and command relationship [if any] to the enlisted person, factors into the equation, as does marital status.

I have successfully handled these upgrade cases for AF clients, and as you can imagine, they fight "tooth and nail" to keep their position intact. Thus, it takes a long time and legal expenses pretty much depend on the time.

If you would like to discuss this in more detail, email me privately with contact info, at [email protected] and I'll get back to you. I'm a retired AF JAG, AD and as an IMA in the Reserves, with 2 tours as an ADC.

Regards,

Don Rehkopf

[email protected]

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Answered on 1/20/09, 4:12 pm


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