RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03455
		INDEX CODE:  106.00, 110.02
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to general under honorable conditions.

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APPLICANT CONTENDS THAT:

He offered no mitigating circumstances in his defense at his trial.  He believes that he was a productive member of the Air Force for 12 years, that he had an exemplary career and asserts that he should not have been court martialed and given a BCD.  The applicant concedes that he was a workaholic, and became an alcoholic, gambler and adulterer.  He declares that he was introduced to gambling by other recruiters who worked in his group, and gambling caused the alcoholism and adultery to become worse.  He states that this information did not come up at his trial because tarnishing other people’s reputation is not his style.  

In support of his request, applicant provided a personal statement, and a copy of his DD 214, Certificate of Release or Discharge from Active Duty.

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

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STATEMENT OF FACTS:

The applicant entered into the Air Force on 27 February 1985 and was progressively promoted to the grade of staff sergeant.

He was tried at a general court-martial on 29-30 June 1989.  He was charged with three specifications of violating a lawful general regulation, in violation of Article 92, UCMJ; and gambling with a subordinate and adultery, both in violation of Article 1334, UCMJ.  Specifically, the applicant gambled while on duty, gambled with a recruit (who later enlisted), and used his Air Force position to influence this subordinate to loan him money.  The applicant made sexual advances toward and accepted sexual advances from an Air Force recruit more than once, and had sexual intercourse with her while he was married to another woman.  He chose to be tried by military judge alone, pled guilty to all charges and specifications, and was found guilty.  The military judge sentenced him to a BCD, confinement for two months, reduction to E-1 and a reprimand.  On 24 August 1989, the convening authority approved the sentence as adjudged.

His case was then reviewed by the United States Air Force Court of Military Review, which is now called the Air Force Court of Criminal Appeals.  On 13 October 1989, the Air Force Court of military review affirmed the findings of guilty and the sentence.  The applicant then appealed to the United States Court of Military Appeals, which is now called the United States Court of Appeals for the Armed Forces.  That petition was denied on      12 January 1990 and he was separated with a BCD on 31 March 1990.

The applicant’s DD Form 214 is dated 14 August 1990 and reflects a BCD.  He served 11 years and 4 months on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  The applicant’s contentions are untimely, without merit and constitute neither error nor injustice.  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 was represented by counsel in presenting extenuating and mitigating matters to the court, and the convening authority.  The matters were considered in review of the sentence.  The applicant was afforded all rights granted by statute and regulation.   

At the time of the court-martial, the applicant was 32-years old and had over twelve years of service.  He had been a recruiter since April 1985.  He was aware that Air Force recruiters were not supposed to gamble or have sexual relations with recruits.  The applicant became very friendly with a young female recruit, leading to at least two sexual encounters.  He also introduced a young male recruit to a gambling operation involving sports and borrowed $1500 from him.  The airman had to borrow money from his family to pay to the applicant the airman’s $15,000 gambling debt.  For his offenses, the applicant was tried and convicted by a general court martial.  

The maximum punishment authorized for the offenses for which the applicant was convicted was a dishonorable discharge, confinement for six years and three months, forfeiture of all pay and allowances, and reduction to E-1.  The sentence was well within the legal limits and was an appropriate punishment for the offenses committed.

The AFLSA/JAJM evaluation, with attachments, 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 11 April 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 an error or injustice to warrant changing his BCD to honorable.  After careful consideration of the available evidence, we found no indication that the actions taken to effect his discharge were improper or contrary to the provisions of the governing regulations in effect at the time, or that the actions taken against the applicant were based on factors other than his own misconduct.  Therefore, 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 the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The documentation provided with this case was sufficient to give the Board a clear understanding of the issues involved and a personal appearance, with or without legal counsel, would not have materially added to that understanding.  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 Docket Number BC-2002-03455 in Executive Session on 20 May 2003, under the provisions of AFI 36-2603:

			Panel Chair
			Member
			Member

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 30 Jan 03.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 26 Mar 03.
	Exhibit D.	Letter, SAF/MRBR, dated 11 Apr 03.