RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03632
		INDEX CODE:  136.00
		COUNSEL:  NONE
		
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His dishonorable discharge be reviewed and his retirement eligibility be restored so that he may retire from the Air Force.

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APPLICANT CONTENDS THAT:

His dishonorable discharge belies a lifetime of dedicated and honorable service for 23-1/2 years.  All of his performance reports were either excellent or outstanding.  He never stopped doing his best and worked hard all the way up to his court-martial.  While he was confined at the Navy Consolidated Brig at Miramar MCAS, he was on a detail where an untrained and unqualified civilian driver backed into him with a 3-ton truck.  He sustained a crushed pelvis, fractured right hip, and his spine and ribs were bruised.  His internal injuries included damage to his colon and lower intestines requiring a resection and colostomy bag.  He was hospitalized for eight weeks and confined to a wheelchair for twenty weeks.  The continuous pain and physical limitations he suffers preclude him from full time employment.  

He was promised that with hard work and completion of the required classes, he would be a better person when released.  He was a model inmate.  He did everything that was asked of him, including completion of Sex Offender Orientation and Victim Impact to Life Skills and Anger Management training.  Instead of being released a better person, he exited a broken and crippled man.  The Department of Veterans' Affairs (DVA) has rejected his claims for medical care and disability resulting from the accident because he was dishonorably discharged, with his last period of honorable service beginning 24 Jan 91, which was the date of his last enlistment.  He will not be able to afford the needed hip replacement or other pain relieving medical care.  He is unable to work and must depend on his wife and relatives for support.  Pride and belief in doing the right thing has kept him from applying for welfare.  He has cancelled medical appointments and skipped medication because he just cannot afford to pay for them.  Retirement will give him a small income and medical coverage that he cannot now afford.  Even though he was in confinement, the accident was the result of the inappropriate actions of a military civilian employee working for the military, on a military installation, while performing assigned military duties.  The military is responsible for his accident, his medical care, and the disability resulting from the accident.

In support of his request, applicant provided a personal statement, his personnel data sheet, character references, his Enlisted Performance Report closing 30 Apr 97, and documentation associated with his accident.  His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force on 28 Jan 74.  He was progressively promoted to the grade of master sergeant, having assumed that grade effective and with a date of rank of 1 Dec 89.

In July 1997, applicant was tried by general court martial for six specifications of violations of federal law pertaining to mailing and distributing obscene material, and possessing and distributing child pornography.  He plead guilty and was found guilty of all specifications.  His sentence, adjudged on 26 Aug 97, was a dishonorable discharge, a fine of $10,000.00, confinement for 54 months, and reduction to the grade or E-1.  However, only so much of the sentence that provided for a dishonorable discharge, confinement for 36 months, reduction to the grade of E-1, total forfeiture of all pay and allowances except for a $900.00 involuntary allotment to be sent to his wife, and a $10,000.00 fine was approved and executed.  The applicant was discharged on 18 Apr 01.  He served 26 years, 1 month, and 23 days on active duty.

In September 1999, the United States Court of Criminal Appeals reviewed his convictions and affirmed the findings and sentence.  The applicant appealed to the United States Court of Appeals for the Armed Forces.  On 14 Feb 00, the Court of Appeals for the Armed Forces denied his petition for review.  While incarcerated, the Air Force Clemency and Parole Board paroled the applicant on 11 Sep 98.  Parole was contingent on satisfactory participation and progress in a community based sex offender treatment program, unsupervised contact with minors was not permitted, and he was to abstain from the use and possession of pornographic or sexually stimulating materials and alcohol.  The parole decision was reconsidered following investigation into the possible use or possession of pornographic/sexually stimulating materials, use of or access to a computer and/or the internet without prior approval of the probation officer, and failure to make satisfactory progress in sex offender treatment.  A subsequent request for parole was considered and denied on 3 Feb 00.  

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states that the applicant previously applied for upgrade of his discharge based on medical reasons and renews his application based on 23-1/2 years of loyal and faithful service and the serious disabling injuries he received while in confinement.  The applicant, his defense counsel, and the government signed a 14 page Stipulation of Facts as a true account of the events, which led to the court-martial.  He was tried by the appropriate forum, a general court-martial.  The maximum punishment authorized for the offenses was a dishonorable discharge, confinement for 50 years, forfeiture of all pay and allowances, and reduction to airman basic.  The sentence was well within the legal limits and was appropriate punishment for the offenses committed.  There is no legal basis for upgrading his discharge.  The applicant bases his present argument on his prior excellent service to the military.  During the court-martial process, the applicant had the assistance of counsel.  He offered mitigating circumstances in his defense.  These matters were considered in determination of and review of the sentence.  He was thus afforded all rights granted by statute and regulation.  He provides no compelling rationale to mitigate the approved dishonorable discharge.  While clemency is an option, there is no reason to exercise clemency.  He did not serve his enlistment honorably.  The tone of his application suggests that, to this day, he has not comprehended the gravity of his actions.  He has identified no error or injustice related to his prosecution or the sentence and presents insufficient evidence to warrant upgrading the dishonorable discharge.  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 8 Aug 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 timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We carefully reviewed the applicant's complete submission in judging the merits of the case.  However, insufficient evidence has been presented which would lead us to believe that correction of his military record in a manner that would allow him to retire from the Air Force is warranted.  We find no evidence of an error in this case and while we are not unsympathetic towards the applicant, we are not persuaded by his contentions that he has been the victim of an injustice.  Therefore, we agree with the opinion and recommendation of the Office of the Judge Advocate General and adopt their rationale as basis for our conclusion that he has not been the victim of an error or injustice.  In the absence of evidence to the contrary, 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 BC-2002-03632 in Executive Session on 17 Sep 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, not dated, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 8 Aug 03.