RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02186
		INDEX CODE:  110.03

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

He be reinstated in the Air Force Reserve.

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APPLICANT CONTENDS THAT:

He received deferred adjudication rather than a civil conviction for the alleged sexual assault on a child.  Thus, he believes he was unfairly discharged from the Air Force Reserve.

In support of his appeal, the applicant provided an expanded statement, a personal statement, and documentation pertaining his deferred adjudication and probation.

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

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STATEMENT OF FACTS:

Available documentation indicated that the applicant enlisted in the Regular Air Force on 1989 for a period of four years.  He was released from active duty on 14 Aug 92 and transferred to the Air Force Reserve.

On 10 Jan 99, the applicant reenlisted in the Air Force Reserve for a period of six years, in the grade of technical sergeant.

On 5 Feb 00, the applicant’s commander recommended that the applicant be separated with an honorable discharge based on a civilian conviction for aggravated sexual assault on a child.

On 27 Mar 00, the Chief of Military Personnel Operations sent a Letter of Notification of Initiation of Separation Action to the applicant.  Specifically, the Statement of Reasons alleged that on or about 17 Aug 95, the applicant had been convicted of aggravated sexual assault of a child by the 226th Judicial District Court of Bexar County, Texas.  The applicant acknowledged receipt and requested a discharge board.

On 18 Jul 00, a Board of Officers was convened.  The board found by a preponderance of the evidence that the applicant was convicted of aggravated sexual assault of a child on or about 17 Aug 95 by the 226th Judicial District Court of Bexar County, Texas.  Consistent with the findings, the board recommended that the applicant be discharged from the Air Force Reserve and issued an honorable discharge certificate.

On 17 Aug 00, the Director of Military Law found the discharge board proceedings to be legally sufficient and recommended that the applicant be discharged with an honorable discharge.

On 18 Oct 00, the discharge authority approved the discharge action and directed that the applicant be discharged with an honorable discharge.

The applicant was discharged from the Air Force Reserve under the provisions of AFI 36-3209 (Misconduct – Civilian Conviction), effective 2 Nov 00, and furnished an honorable discharge.  

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AIR FORCE EVALUATION:

AFRC/DPM recommended denial noting that AFRC/JA had reviewed the applicant’s request and did not find any evidence of injustice to warrant setting aside the administrative discharge board’s findings and recommendations.  They indicated that they concur with AFRC/JA.

A complete copy of the AFRC/DPM evaluation, with attachments, including AFRC/JA’s legal review, 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 applicant on 11 Oct 02 for review and response.  As of this date, no response has been received by this office (Exhibit D).

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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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  The evidence of record reflects that the applicant was honorably discharged from the Air Force Reserve based on his civilian conviction in Texas for aggravated sexual assault of a child; i.e., his stepdaughter.  He now requests reinstatement contending that he received deferred adjudication rather than a civil conviction.  Thus, he believes he was unfairly discharged.  While it does appear that was the case, we note that Texas Statutes and Codes, Section 86.006, defines a “convicted person” as one who has received, among other things, a fine, probation, or deferred adjudication.  Therefore, in the absence of evidence which shows that the applicant's substantial rights were violated, that the information used as a basis for his discharge was erroneous, or that his superiors abused their discretionary authority, 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 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 AFBCMR Docket Number 02-02186 in Executive Session on 19 Nov 02, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFRC/DPM, dated 18 Sep 02, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Oct 02.