RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 01-02861

	 	COUNSEL:  

	 	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.	Her under other than honorable conditions (UOTHC) discharge be upgraded to honorable, with all appropriate benefits associated with an honorable discharge.

2.	She receive a lump sum payment for 55.5 days of accrued leave.

3.	Any and all references to her UOTHC discharge be removed from her records.

4.	Her records be corrected to reflect that she did not commit the charged offenses, as referred to in the Staff Judge Advocate Review, dated 12 November 1999.

5.	She be relieved of any financial obligation to pay any interest on an interest free loan previously given to her by the Air Force Aid Society.

6.	She be eligible to reenlist in the same rank and seniority that she would have been in, if she had not been discharged.

7.	She be reinstated in the Air Force, with the same rank and seniority that she would have been in, if she had not been discharged, with all back pay and allowances.

8.	She receive all other relief as is just and appropriate.

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THE APPLICANT CONTENDS THAT:

She was not guilty of the charged offenses (i.e., larceny and forgery) and the charges should have been dismissed because they were not supported by sufficient evidence.

The applicant states that nowhere in her request for discharge in lieu of trial does she admit any guilt, but instead asked only that she be granted a discharge because she wanted to be able to leave the service so she could take care of her seven year old daughter and not have to worry about the possibility of her receiving jail time.  Her request for discharge should not have been approved due to a lack of sufficient evidence to convict and the charges dismissed.

In support of the appeal, the applicant submits her personal affidavit, extracts from her discharge package, and character statements.

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

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STATEMENT OF FACTS:

The applicant was discharged on 6 December 1999, under the provisions of AFI 36-3208 (Triable by Court-Martial), with her service characterized as UOTHC.  She completed 11 years and 3 months of total active service.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letters prepared by the appropriate offices of the Air Force at Exhibits C and D.

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AIR FORCE EVALUATIONS:

AFPC/DPPRS recommends the application be denied.  AFPC/DPPRS states, in part, that the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  Additionally, the discharge was within the sound discretion of the discharge authority.  Furthermore, the applicant was never convicted of her crimes because she requested, and was approved, for the UOTHC discharge in lieu of receiving a court-martial.  Additionally, the discharge was within the sound discretion of the discharge authority.  The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  He has provided no other facts warranting an upgrade of the discharge.  The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  He has provided no other facts warranting an upgrade of the discharge.

The AFPC/DPPRS evaluation is at Exhibit C.

AFPC/JA recommends the application be denied.  AFPC/JA states, in part, that the applicant has not met her burden of proof that she has been the victim of an error or injustice.  There is no evidence from any source suggesting that the charges would have been dropped had the applicant not requested discharge in lieu of trial.  The evidence of her guilt clearly existed, and was strong enough to cause her and her military defense counsel to seek a discharge, even knowing it would be in all likelihood a UOTHC.  Moreover, it is not reasonable to now disregard her statement to her commander that the discharge would punish her for her actions.  If she did not perceive that she had done something wrong, why would she have made such a statement?  It is not an error or injustice to let the applicant pay the unfortunate price of her UOTHC discharge where she has, at her own request, received the benefit of not facing a court-martial on serious charges and the potential consequences.  The applicant had an opportunity to present her case to a court-martial in 1999, at which time she could have called witnesses and presented evidence and argument on her own behalf.  However, after consultation with counsel, she elected to waive her right to do so and chose to leave the service, rather than test the merits of the government’s case.  She should not be permitted to use her voluntary request on the one had to halt the criminal procedure established by law as the proper means to adjudicate the allegation against her, and now, in the guise of an allegation of error or injustice, litigate those same allegations of misconduct contrary to the very waiver accepted in good faith by the Air Force.

The AFPC/JA evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant states that she remains without fault and should not be forced to live forever with the most adverse effects of her UOTHC discharge.  Once the Staff Judge Advocate (SJA) learned that she had actually sent a $200.00 payment to the alleged victim’s mother, which was contrary to what the alleged victim had stated, and had paid for it from the alleged victim’s monies, he immediately stopped the trial proceedings and immediately accepted the request for discharge.  It was not because she was guilty of the charges that she requested the discharge, but to be able to take care of her infant child.  Certainly the fact that the alleged victim had previously permitted her to sign her name to checks and have access to her checkbook, lends substantial credibility to her testimony that she had the alleged victim’s permission for subsequent usage.

The applicant’s complete response, with attachments, is at Exhibit F.

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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 error or injustice.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that relief should be granted.  In this respect, we note that on 25 October 1999, the applicant requested discharge in lieu of trial by court-martial, acknowledged that granting her request would punish her for her actions, and that she was aware of the adverse nature and possible consequences of her UOTHC discharge, if approved.  The contentions of the applicant’s counsel are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Staff Judge Advocate and we agree with their opinion and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain her burden that she has suffered either an error or an injustice.  Hence, we find no compelling basis to recommend granting the relief sought.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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 Docket Number 01-02861 in Executive Session on 2 May 2002, under the provisions of AFI 36‑2603:
 
    Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Sep 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 1 Dec 01.
    Exhibit D.  Letter, AFPC/JA, dated 10 Dec 01.
	Exhibit E.  Letter, SAF/MRBR, dated 14 Dec 01.	
	Exhibit F.  Letter, Counsel, dated 10 Jan 02, w/atchs.