RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-03903
	INDEX CODE:  110.02

				COUNSEL:  NONE

				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded to general (under honorable conditions).

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APPLICANT CONTENDS THAT:

His discharge was not consumate (sic) with his military record.

Applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 13 Jul 77, the applicant enlisted in the Regular Air Force for a period of four years.  He served on continuous active duty and entered his last enlistment on 24 Dec 84.  Prior to the events under review, he was promoted to the grade of staff sergeant (SSgt/E-5) with an effective date and date of rank (DOR) of 1 Jul 81.

Applicant’s last five airman performance reports (APRs) reflect overall ratings of “9.”

On 9 September 1985, court-martial charges were preferred against the applicant for two specifications of forcible sodomy in violation of Article 125, one specification of assault in violation of Article 128, and one specification of an indecent act with another in violation of Article 134, in that, on or about 11 July 1985, he committed sodomy with his military spouse by force and without her consent, unlawfully struck his military spouse in the face and shoulder area with his fists, banged her head against the floor and choked her around the neck with his hands.

On 15 October 1985, after consulting with counsel and having been advised of his rights, applicant requested discharge in lieu of trial by court-martial in accordance with AFR 39-10, chapter 4.  In his request he acknowledged his understanding that he could receive a UOTHC discharge, regardless of the recommendation, and that he was aware of the adverse nature of such a discharge, the possible consequences, and that it could deprive him of veterans’ benefits.

The squadron commander recommended the applicant’s request be approved and that he be furnished an honorable discharge.  He stated that based on the seriousness of the charges, he did not feel that the applicant should remain in the Air Force.  He did not counsel the applicant because the acts, in this matter were normally spontaneous reactions to great stress or emotion.  Regardless of the reasons, his acts were criminal in nature and should result in his discharge.  On 25 October 1985, the Group staff judge advocate (SJA) found the case legally sufficient for discharge and recommended approval of the request with an under other than honorable conditions discharge.

On 28 October 1985, the group commander recommended approval of the request for a discharge in lieu of trial by court-martial with a UOTHC discharge.  On 14 November 1985, the Numbered Air Force SJA found the case legally sufficient.  He recommended the applicant be separated with a UOTHC discharge.  On 15 November 1985, the discharge authority approved the request for discharge and directed the applicant be issued a UOTHC discharge.

On 27 November 1985, the applicant was discharged under the provisions of AFR 39-10, with service characterized as under other than honorable conditions.  He served 8 years, 4 months and 15 days on active duty.

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AIR FORCE EVALUATION:

HQ AFPC/DPPRS found that the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  Additionally, that the discharge was within the sound discretion of the discharge authority.  They also noted that the applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing nor did he provide any facts warranting an upgrade of his discharge.  Accordingly, they recommended his records remain the same and his request be denied.  

A complete copy of the 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 14 February 2003, 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 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.  After careful review of the facts surrounding the applicant’s separation, the discharge appears to be in compliance with the governing regulation and we find no evidence to indicate that his separation from the Air Force was inappropriate.  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.

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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-2002-03903 in Executive Session on 21 May 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Jan 03, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 29 Jan 03.
    Exhibit D.  Letter, SAF/MRBR, dated 14 Feb 03.