RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-01711
		INDEX CODE:  110.02
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to honorable.
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APPLICANT CONTENDS THAT:

His BCD has made it difficult for him to become a productive member of society.  It has made it difficult for him to find a job and he doesn't have the same benefits as others that served their country.  He admits that what he did was wrong and has apologized to everyone that he has hurt or offended.  During this time in his life he was very sick and thinking irrationally.  He has found a job and has been working there for the past 4 years.  He is able to use his G.I. Bill benefits from a previously honorable discharge to further his education but those benefits expire in 2005.  He is constantly striving to do his best no matter what he does.  He attends church every week and volunteers whenever he can be of service.  He is a single father with two boys and is trying to better himself in order to provide them with the proper guidance and a good future.  

In support of his request, applicant provided a personal statement, character references, his educational transcripts and certificates, certificates of appreciation and training, his Honorable Discharge certificate, his birth certificate, a criminal background check, a photo; and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force on 11 Mar 91 and was progressively promoted to the grade of senior airman, having assumed that grade effective and with a date of rank of 11 Mar 94.

The applicant was tried by general court-martial for a specification of rape, housebreaking with intent to commit an indecent assault, and two specifications of indecent assault.  He plead guilty to one specification of indecent assault and to unlawful entry as opposed to housebreaking.  He pled not guilty to the specification of rape and the remaining specification of indecent assault.  He was found guilty of indecent assault by a military judge.  Officer members found him not guilty of rape but guilty of one specification of indecent assault; not guilty of the remaining indecent assault specification but guilty of assault consummated by a battery; and guilty of housebreaking.  Sentence adjudged on 29 Mar 97 was a BCD, confinement for 6 months, 3 months of hard labor without confinement, and reduction to the grade of airman first class.  On 15 May 97, the convening authority reduced the hard labor without confinement to 1 month but otherwise approved the sentence.  The case was reviewed and affirmed by the Air Force Court of Criminal Appeals (AFCCA) on 15 Oct 98.  The U.S. Court of Appeals for the Armed Forces, affirmed the decision of the AFCCA on 31 Aug 00.  The applicant was discharged on 12 Apr 98, he served 7 years, 1 month, and 1 day on active duty.

The following is a resume of the applicant's Enlisted Performance Report profile:

	PERIOD ENDING	PROMOTION RECOMMENDATION

		11 Oct 96		3
		11 Oct 95		4
		06 May 95		5
		15 Sep 94		5
		15 Sep 93		5
		13 Nov 92		3

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant's request.  JAJM states that rape, indecent assault, and housebreaking are serious offenses.  As such, a general court-martial was the appropriate forum.  The sentence was well within the legal limits and the BCD was an appropriate punishment for the offenses alleged.  While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant did not serve honorably.  The applicant helped an airman move into her apartment where she later woke up to find the applicant on top of her.  A few weeks later, while at work he came up behind the same airman in a storage room and fondled her.  A few months later he entered another airman's room while she was asleep and fondled her.  He was caught and convicted of these crimes.  There are consequences for criminal behavior.  The authorities involved all believed that a BCD was an appropriate consequence that accurately characterized his military service and his crimes.  He has provided no evidence of a clear error or injustice related to the sentence.   The JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 22 Nov 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 probable error or injustice.  While we find his post-service accomplishments commendable, we are not persuaded by the evidence submitted in support of his appeal, that a change to his characterization of service is warranted.  The comments of the Office of the Judge Advocate General are supported by the evidence of record.  We find no evidence of error in this case and after thoroughly reviewing evidence of record, we do not believe he has suffered from an injustice.  Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application.

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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 02-01711 in Executive Session on 15 Jan 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 14 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 31 Oct 02.
    Exhibit D.  Letter, SAF/MRBR, dated 22 Nov 02.

                                   
                                   Panel Chair