RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02837
		INDEX CODE:  105.01, 133.01
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  His dishonorable discharge be upgraded to honorable.

2.  His records be corrected to reflect that he retired from the Air Force in the grade of master sergeant.
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APPLICANT CONTENDS THAT:

His discharged was based on one incident during his military career and his 23 years of honorable service were ignored.  He had no previous disciplinary actions and was the recipient of numerous medals and awards.  His former spouse made several false allegations against him and created a perception that something happened that did not occur and his son's testimony during his trial was not credible.  His defense counsel's failure to call upon requested witnesses who had first-hand knowledge of his wife's vicious nature allowed the panel to believe that the allegations were true.  The court instructions provided by the judge on the types of punitive discharges and their results allowed the panel to believe that prior service was not affected.  The decision of the military court would have resulted in only a probationary sentence from a civilian court, had it been worthy of a trial.  His discharge was based on less than satisfactory performance reports that were rendered during the last part of his career. His post-discharge conduct does not portray a person deserving of a dishonorable discharge.

In support of his request, applicant provided a personal statement, copies of his Honorable Discharge certificates, several witness statements, numerous affidavits, medical statements, extracts from his court-martial proceedings, documentation associated with his divorce proceedings, his Enlisted Performance Reports (EPRs) rendered between the period 30 Mar 89 and 30 Jun 92, a copy of his Air Force Achievement Medal, numerous award certificates, and documentation associated with a Congressional inquiry.  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 16 Apr 79.  He was progressively promoted to the grade of master sergeant, having assumed that grade effective and with a date of rank of 1 Feb 87.

On 20 May 92, applicant was tried by general court for a specification of committing oral sodomy on divers occasions with a child under the age of 16 years, a specification of committing an indecent act upon the body of a male under 16 years of age, and a specification of taking indecent liberties with a male under 16 years of age on divers occasions.  He plead not guilty and was found guilty of all specifications.  His sentence, adjudged on 21 May 92, was a dishonorable discharge, confinement for 5 years, and reduction to the grade of airman basic. His sentence was approved by the convening authority on 18 Sep 92.  On 23 Nov 94, the Air Force Court of Criminal Appeals affirmed the findings of guilty and the sentence.  On 29 Jun 95, the United States Court of Appeals for the Armed Forced denied his petition for review.

On 29 Jan 93, the applicant submitted s request for retirement in lieu of dishonorable discharge.  His request was considered as a dual action case to the Secretary of the Air Force Personnel Council (SAFPC).  On 21 May 93, SAFPC denied his request for retirement.  The applicant was discharged on 29 Sep 95.  He served 23 years, 5 months, and 18 days on active duty.  

The following is a resume of the applicant's performance report history prior to his court-martial action:

	PERIOD ENDING	PROMOTION RECOMMENDATION

EPRs
		30 Jun 91				2 - Referral Report
		02 Dec 90				5
		02 Dec 89				3

Airman Performance Reports (APRs) 
		29 Mar 89				8	
		01 Jan 86 thru 05 Jun 88 (5 APRs)		9
		06 May 85				8
		26 Jan 78 thru 01 Aug 84 (11 APRs)		9
		26 Jan 77 and 26 Jan 76				8
		26 Jan 75				7
	16 Apr 73 and 26 Jan 74				9
	15 Mar 72 and 08 Nov 72				7
		27 Jul 71				8
	31 Jan 70 thru 12 Dec 70 (3 APRs)			5

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial on the basis of untimliness.  JAJM states that evidence at trial showed that on numerous occasions the applicant showed his 14-year old son a videotape of the applicant and his wife engaged in sexual intercourse.  During this video, the applicant told his son to masturbate and perform oral sex on the applicant.  His son told his mother and when confronted, the applicant told his wife and daughter "I must have been out of my mind during the time".  Sodomy and indecent acts with a male under 16 years of age are serious offenses.  A general court-martial was the appropriate forum.  The sentence was well within the legal limits and the dishonorable discharge was an appropriate punishment for the offenses committed.  The Air Force Court of Criminal Appeals considered nine allegations of error regarding the court-martial process.  The Court determined that the applicant was provided with effective counsel.  The Court considered the factual sufficiency of the evidence against the applicant and was convinced of his guilt beyond a reasonable doubt.  His recent concern regarding the military judge's instruction should have been raised during the court-martial or on appeal; because it was not addressed, it was effectively waived by the applicant.  Moreover, he has provided no evidence that the instruction was in error.  

The applicant contends a civilian court would have adjudged a probationary sentence.  He provides a letter wherein a New Mexico attorney opines that the applicant "received a potentially harsher sentence" from the military than a state court in New Mexico would have adjudged.  However, New Mexico repealed its sodomy laws in 1975.  Therefore, he would not have been convicted in New Mexico of this offense.  The applicant submits no evidence that a civilian court would have adjudged only probation for multiple indecent liberties and acts with a 14-year old boy.  The handling of each person's case is tailored to that individual and to the facts and circumstances of the case.  

His argument that his dishonorable discharge was based on his less than satisfactory EPRs has no merit.  In fact, the government is required to introduce an accused's performance reports in the presenting phase of a court-martial.  The court members considered his performance reports in addition to all other evidence introduced.  It is likely they adjudged a dishonorable discharge primarily because of his repeated sexual abuse of his son, not a substandard performance report.  

There is no legal basis for upgrading his discharge.  He was afforded all rights granted by statute and regulation, and he provides no compelling rationale to mitigate the approved punitive discharge given the circumstances of the case.  While clemency is an option, there is no reason to exercise clemency in this case.  The applicant did not serve honorably.  His recent good conduct does not erase his misconduct in his last enlistment.  He provided no evidence of an error or injustice and it would be unjust to change his characterization to one that hundreds of thousands of airmen, who have served honorably, also carry.  The JAJM evaluation is at Exhibit C.

AFPC/DPPRS recommends denial.  DPPRS states that in accordance with AFI 36-3203, Table 2.2, he was restricted from applying for retirement because he was under court-martial sentence, including dishonorable discharge of confinement for over 6 months.  The applicant was afforded the opportunity to request for retirement in lieu of dishonorable discharge upon approval of his sentence because he had reached 20 years of total active federal military service.  The discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.  He did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  The DPPRS evaluation is at Exhibit D.

AFPC/DPPRRP recommends denial.  DPPRRP states that there were no injustices or irregularities that occurred in the dual action, retirement in lieu of dishonorable discharge, processing.  His case was reviewed by the Air Force Court of Criminal Appeals and it affirmed the findings of guilty and the sentence.  The United States Court of Appeals for the Armed Forced denied his petition for review.  The DPPRRP evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 11 Apr 03 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.  We are not persuaded by the evidence provided in support of his appeal that the actions taken against the applicant were improper, contrary to the provisions of the governing regulations, or that he was denied rights to which he was entitled.  The comments of the Office of the Judge Advocate General and the Air Force offices of primary responsibility are supported by the evidence of record, and the applicant has provided no evidence which would lead us to believe otherwise.  We find no evidence of error in this case and after thoroughly reviewing the documentation that has been submitted in support of applicant's appeal, 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.

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 issues 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 AFBCMR Docket Number BC-2002-02837 in Executive Session on 21 Aug 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 9 Jan 03.
    Exhibit D.  Letter, AFPC/DPPRS, dated 18 Mar 03.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 3 Apr 03, w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 11 Apr 03.