RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-02842

		COUNSEL:  	

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to general (under honorable conditions).
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APPLICANT CONTENDS THAT:

At his court martial, he admitted his misconduct and he served nine months confinement.  His six-year term of service in the Air Force was prematurely terminated after only 22 months, despite his excellent evaluations as aerospace ground equipment apprentice.  The dishonorable discharge, which follows him the rest of his life, seems excessive for such an isolated incident.

In support of his appeal, the applicant’s counsel submits a legal brief and a letter of support from applicant’s uncle.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic on 21 July 1999 for a period of 4 years.  The applicant, then an airman first class assigned to the 57th Equipment Maintenance Squadron, Nellis Air Force Base, Nevada, was tried at a general court-martial on 2 October 2001.  He elected trial before a military judge sitting alone.  The applicant was charged with carnal knowledge, sodomy, and making a false official statement, in violation of Articles 120, 125, and 107 of the UCMJ.  The carnal knowledge and sodomy offenses were committed against a 14-year old female civilian.  The applicant pled guilty of all charges.  The military judge found the applicant guilty of all charges and sentenced him to be reduced to the grade of E-1, be confined for 10 months, and to receive a bad conduct discharge.  On 6 November 2001, the convening authority approved the sentence as adjudged.

Because the convening authority approved a punitive discharge, the case was reviewed by the Air Force Court of Criminal Appeals (AFCCA).  On 28 February 2002, it affirmed the findings of guilty and the sentence.  The applicant did not appeal to the U.S. Court of Appeals for the Armed Forces.  The applicant’s DD Form 214 shows his bad conduct discharge was executed on 13 June 2002.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  JAJM states there is no legal basis for upgrading the applicant’s discharge.  The appropriateness of the applicant’s sentence, within the prescribed limits, is a matter within the discretion of the court-martial and may be mitigated by the convening authority or within the course of the appellate review process.  The applicant had the assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court authority.  These matters were considered in determination and review of the sentence.  The applicant was thus afforded all rights granted by statue and regulation.  The applicant provides no compelling rationale to mitigate the approved punitive discharge given the circumstances of the case.

Carnal knowledge, sodomy, and making false statements are serious offenses.  As such, a general court-martial was the appropriate forum.  The maximum punishment authorized for the offenses for which the applicant was convicted was a dishonorable discharge, confinement for 45 years, forfeiture of all pay and allowances, and reduction to E-1.  The sentence was well within the legal limits and the bad conduct discharge was an appropriate punishment for the offenses committed.  The findings of guilty and the sentence, including the bad conduct discharge, were affirmed upon appellate review.

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 met a 14-year old female on a telephone chat line.  The applicant knew the female was 14-years old.  Despite warnings from the female’s mother, the applicant continued to communicate with the female.  The applicant then engaged in carnal knowledge and sodomy with the female in his room.  When a member of the Security Forces went to the applicant’s dorm room and questioned him regarding the whereabouts of the female, the applicant lied and said she was not in the dorm room.  The applicant pled guilty to carnal knowledge, sodomy, and making a false statement.

There are consequences for criminal behavior--the military judge, convening authority, and the Air Force Court of Criminal Appeals believed a bad conduct discharge was an appropriate consequence that accurately characterized his military service and his crimes.  It would be unjust to change that characterized to one that hundreds of thousands of airmen, who have served honorably, also carry.  Moreover, we find it highly unlikely the applicant cannot obtain a job.  Indeed, to support his contention he offers nothing more than his bare assertion.

The applicant has provided no evidence of a clear error or injustice related to the sentence.  The applicant presents insufficient evidence to warrant upgrading the bad conduct discharge, and does not demonstrate an equitable basis for relief. 

AFLS/JAJM complete 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 and counsel on 17 January 2003, for review and comment.  As of this date, no response has been received by this office.

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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 an error or injustice that would warrant an upgrade of his discharge.  We agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt their rationale as the basis for our conclusion that he has not been the victim of an error or injustice.  Evidence has not been provided which would lead us to believe that the action taken to affect his discharge from the Air Force was improper or contrary to the provisions of the governing regulations at the time; or, that the characterization of his service was based on factors other than his own misconduct.  Therefore, based on the available evidence of record, we find no compelling basis upon which to recommend granting the relief sought in 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 a 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 02-02842 in Executive Session on 25 March 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 1 Oct 02, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, 24 Dec 02.
	Exhibit D.	Letter, SAF/MRBR, dated 17 Jan 03.