RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02410
		INDEX NUMBER:  110.02

		COUNSEL:  AMERICAN LEGION

		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded to general (under honorable conditions).

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APPLICANT CONTENDS THAT:

He believes the decision of the Air Force Discharge Review Board (AFDRB) was unjust.  He disagrees that the discharge authority acted without inequity.  His records show that he enlisted in the Air Force with a previous medical and behavioral history and that he was not able to meet the standards, physically and emotionally, that are required for members of the armed services. There was nothing in his actions that would have resulted in a less than honorable discharge.

When he was hospitalized in an unsupervised coed medical/mental evaluation facility, he was charged with having inappropriate contact with a female dependent of a retired service member.  He further states that his records do not indicate assault, rape or violence of any kind.

He says when provided an option of discharge in lieu of court-martial, he was frightened and 24 years of age, with the mind of an 18 or 19 year old and unable to cope with the stress and pressures of Air Force life.  His counsel told him if he didn’t take the deal he would have to go to jail and at the time he didn’t fully understand the consequences of signing the request for discharge or the true possibilities had the case gone to trial.

He indicates that he’s been married since October 1988, worked at various jobs and has been a law-abiding citizen.  

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 18 April 1984, the applicant enlisted in the Regular Air Force in the grade of airman first class (E-3). He received one performance report with an overall evaluation rating of 7.

On 14 January 1985, court-martial charges were preferred against the applicant, for violation of Article 120, Uniform Code of Military Justice (UCMJ), in that, on or about 10 September 1984, while an in-patient in the mental ward at the hospital at Dyess AFB TX, he committed the offense of carnal knowledge with a dependent daughter of a retired military member.

On 17 May 1985, after consulting with counsel and having been advised of his rights, applicant requested discharge in lieu of trial by court-martial in accordance with AFR 39-10, chapter 4.  In his request he indicated his understanding that he could be approved for a UOTHC discharge, regardless of the recommendation and that he was aware of the adverse nature of such a discharge, the possible consequences and that it may deprive him of veterans benefit.

On 24 May 1985, the squadron commander recommended the applicant’s request be approved.  He did not recommend probation and rehabilitation in this case.  On 28 May 1985, the Group staff judge advocate (SJA) recommended approval of the request as being in the best interest of the Air Force and all parties involved.

On 7 June 1985, the group commander concurred with the request for a discharge in lieu of trial by court-martial.  On 11 June 1985, the Numbered Air Force SJA found the case legally sufficient.  He recommended the applicant be separated with a UOTHC discharge.  On 11 June 1985, the discharge authority approved the request for discharge in lieu of trial by court-martial and directed the applicant be issued a UOTHC discharge.

On 17 June 1985, the applicant was discharged under the provisions of AFR 39-10, with service characterized as under other than honorable conditions.  He served 1 year and 2 months on active duty, and 5 months and 17 days on inactive duty.

On 3 November 1999, the Air Force Discharge Review Board (AFDRB), reviewed the applicant’s request for upgrade of his UOTHC discharge.  The AFDRB found that neither evidence of record, nor that provided by the applicant, substantiated an inequity or impropriety, which would justify a change in the discharge (see AFDRB Hearing Record at Exhibit B).

Pursuant to the Board's request, the Federal Bureau of Investigation, Clarksburg, WV, indicated that on the basis of the data furnished, they were unable to locate an arrest record (Exhibit C).

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AIR FORCE EVALUATION:

HQ AFPC/JA, recommended denial based on the lack of relevant evidence or injustice.  They concurred with the conclusions of the AFDRB that applicant’s discharge was consistent with the procedural and substantive requirements of the discharge regulation, and further that the discharge action was within the discretion of the discharge authority.

They stated that the characterization of service as under other than honorable conditions may be appropriate if the member requests discharge in lieu of court-martial and when the reason for separation is based on…one or more acts or omissions that constitute a “significant departure” from the conduct expected of airmen.  They added the applicant’s case was such a “significant departure.”

They further noted that the applicant now points out that his counsel and the staff judge advocate both stated that a conviction was unlikely if he had proceeded to trial, however, the time to have tested the evidence to see if their opinions were correct has long passed.  Given the decision made by the applicant at that time, and the lengthy time interval since his alleged misconduct, no way exists to now decide the issues avoided by applicant in 1985.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 26 October 2001, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit E).  As of this date, this office has received no response.

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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 probable error or injustice.  After reviewing the circumstances surrounding applicant’s separation, we are not persuaded that the type of discharge he received was either in error or unjust.  We took notice of the applicant's complete submission in judging the merits of the case; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the misconduct of the applicant during his military service.  Therefore, we agree with the opinion and recommendation of AFPC/JA and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or injustice.  Therefore, in the absence of persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 8 January 2002, under the provisions of AFI 36-2603:
    Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Aug 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation
    Exhibit D.  Letter, HQ AFPC/JA, dated 19 Oct 01.
    Exhibit D.  Letter, AFBCMR, dated 26 Oct 01.