RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBERS:  02-01252
		INDEX CODE 110.00
	 	COUNSEL:  None

	 	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His 1983 under-other-than-honorable-conditions (UOTHC) discharge be upgraded to honorable or at least general.

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APPLICANT CONTENDS THAT:

He was accused of and discharged for a crime not proven in court-martial. Counsel misled him by advising he definitely would be confined again because of his previous court-martial. He wants his record reviewed to see if he qualifies for an honorable or at least a general discharge.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force for four years on 4 Jan 80 and was assigned to the 63rd Supply Squadron at Norton AFB, CA as a wing/base fuels mobile refueling operator.  His performance reports reflect overall ratings of 9, 9, and 8.

On 14 Mar 80, the applicant received a letter of reprimand (LOR) for condoning the use and possession of marijuana on 9 Mar 80. The LOR was filed in his Unfavorable Information File (UIF).

On 16 Apr 81, the applicant received an Article 15 for failing to obey an order to appear in uniform for counseling and using disrespectful language toward a superior NCO on 7 Apr 81. He was punished with five days of extra duty and did not appeal.

He received an LOR on 7 Apr 82 for failing to report for duty on 3 April 82.

On 16 Aug 82, the applicant plead and was found guilty in a special court-martial of the following: possession and transfer of marijuana to another airman on 22 May 82, use of marijuana on 22 Jun 82, and possession and sale of marijuana to another airman on 1 Jul 82.  The sentence, which was approved on 14 Oct 82, was confinement at hard labor for five months, forfeiture of $325.00 per month for five months and reduction from airman first class to airman.

On 19 Apr 83, the applicant was charged with raping a female airman first class in her dorm room on 26 Feb 83. An Article 32 investigative report dated 10 May 83 reveals that the enlisted female allegedly struggled against the applicant’s sexual advances initially and then grudgingly acquiesced because she believed he would hurt her and resistance was futile. The female airman was reluctant to testify at a trial. Although the facts presented during the investigation indicated a prima facia case for technical rape, the issue of consent was clouded. Therefore, the investigating officer recommended the case be referred to a special court-martial with an alternative charge of indecent assault.

On 17 May 83, after consulting with counsel, the applicant requested discharge in lieu of trial by court-martial. He indicated he understood he could be separated with a UOTHC discharge. His area defense counsel recommended his client’s request be granted.

On 31 May 83, the commander recommended the applicant be separated with a UOTHC discharge. The case was found legally sufficient. The discharge authority approved the applicant’s request for discharge in lieu of court-martial and directed his separation with a UOTHC characterization.

The applicant was discharged in lieu of trial by court-martial in the grade of airman with a UOTHC characterization on 29 Jun 83. He had 3 years, 1 month and 29 days of active service. 

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AIR FORCE EVALUATION:

HQ AFPC/DPPRS provided their rationale for recommending denial.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 30 Aug 02 for review and comment within 30 days.  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 error or injustice. After a thorough review of the evidence of record and the applicant’s submission, we are not persuaded that his UOTHC discharge should be upgraded to honorable or general. The applicant’s contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force. In this regard, we note the applicant’s significant history of misconduct almost from the beginning of his career. Further, he opted for discharge in lieu of court-martial; he cannot litigate the charges against him almost 20 years later after he chose to avoid a trial in 1983. He has provided no evidence demonstrating his UOTHC discharge was unjust. We therefore agree with the recommendations of the Air Force and adopt the rationale expressed as the basis for our decision that the applicant has not shown he suffered either an error or an injustice. In view of the above and absent persuasive evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

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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 this application in Executive Session on 21 November 2002 under the provisions of AFI 36-2603: 

The following documentary evidence relating to AFBCMR Docket Number 02-01252 was considered:

   Exhibit A.  DD Form 149, dated 26 Jul 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 16 Aug 02.
   Exhibit D.  Letter, SAF/MRBR, dated 30 Aug 02.