RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00882
		
		COUNSEL:  NONE

		HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He would like to start off by saying that there is no possible way he can ever go back and undo his crimes.  All he can do is say that he is sorry from the bottom of his heart, get forgiveness from God, and learn from his crimes so he does not do them again and maybe down the road be able to help someone else.

Each day of his life, he looks at what type of a person he was during that point in his life.  He was a young, stupid, and selfish person who had no regard for anyone or anything. All he was worried about was himself and his feelings.  In his opinion, he probably does not ever deserve getting his discharge upgraded.  He feels this way because his service during that time was dishonorable and even he will always view it that way.  But then he asks himself this question, which he now reflects toward you.  If a person has genuinely changed, is genuinely sorry for his crimes, is serving his nation by helping others, just like himself, through the help of God, and has become a normal and law abiding citizen, would this constitute a consideration for upgrading his discharge?  He sincerely hopes the answer is yes.  If not, then he must accept that there is nothing else he can do except for what he is doing now.  

The above question he reflected to the Board above applies to him.  He is genuinely sorry for his crimes.  He is a totally different person.  He was saved and baptized into a local church back home, shortly before his confinement.  He attended several self-help classes while confined, such as the victim empathy program as well as many others.  He also successfully completed his period of parole in which he was also enrolled in a sex offenders treatment program.  He is now married and has two small children.  He has a home of his own and a good job.  In July 2000, he surrendered the call into the ministry.  His primary ministry is to work with prisoners in confinement to show them how crime is the wrong type of life, how he was affected, how God helped him, how God still help him, and how he will help them if they let him.  There has been tremendous success with over 20 people being saved.  He currently visits one prison, but was visiting two.  In the near future, he hopes to again visit two prisons.  He does this as a service to God, to himself, and to his country by trying to deter crime by engaging in this ministry.  He does not do this to gain recognition or to try and get his discharge upgraded.  Even if his request is denied, he will still be active in this ministry.  

In conclusion, he would respectfully request an upgrade from his dishonorable discharge.  God has forgiven him, he has forgiven himself, and he hopes this Board and the Air Force can too.  Enclosed are several documents, which support his request and confirm information in this request.  Thank you very much for your time and consideration.

In support of his request, applicant provided a personal statement, a letter from SAF/MRBR, a copy of DD Form 214, a copy of Certificate of Parole, a letter from SAF Personnel Council, a Certificate of Release from Parole, letters of support from his social worker, probation officer, friends and family members and an order from the Governor of Kentucky restoring the civil rights lost by reason of conviction of a felony.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 6 Jun 94 and was progressively promoted to the grade of airman.  

On 14 May 1996, he was tried by a general court-martial for three specifications of indecent assault, in violation of Article 134, UCMJ; and one specification of dereliction of duty, in violation of Article 92, UCMJ.  The applicant was accused of touching or penetrating the vaginal area of three female patients with the intent to gratify his sexual desires, and of performing examinations without a chaperone present.  The applicant pled guilty to the indecent assault specifications, and not guilty to dereliction of duty.  

The applicant entered into pretrial agreement with the convening authority.  The applicant offered, among other things, to plead guilty to the indecent assault specifications and request to be tried by military judge alone.  In exchange, the convening authority agreed to withdraw the dereliction of duty charge and approve no more than 36 months confinement.

The applicant chose to be tried by military judge alone, who found him guilty in accordance with his pleas.  Upon the government’s motion, the military judge ordered the dereliction of duty charge withdrawn and dismissed.  The military judge sentenced the applicant to be reduced to E-1, be confined for 54 months, and to be dishonorably discharged.  In accordance with the pretrial agreement, on 2 August 1996 the convening authority reduced the confinement to 36 months, but otherwise approved the sentence as adjudged.

Because his approved sentence included a dishonorable discharge, the United States Air Force Court of Criminal Appeals reviewed the applicant’s convictions.  On 2 July 1997, it affirmed the findings of guilty and the sentence.  The applicant appealed to the United States Court of Appeals for the Armed Forces.  On    12 March 1998, the Court ordered certain forfeitures of pay returned to the applicant, but affirmed the lower court’s decision.  The applicant was dishonorable discharged on 12 August 1998.  He served two years, one months, and 15 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

ALSA/JAJM recommends denial and states that the applicant must file an application within three years after the error or injustice was discovered, or, with due diligence, should have been discovered.  An application not timely filed may be denied on that basis, although the untimely filing may be excused in the interest of justice.  The application is dated 14 February 2003, over six years after his conviction and four years after he was discharged.  As justification for the untimely filing, the applicant explains he appealed to the Commandant of the U.S. Disciplinary Barracks in 1999 and also to the Secretary of the Air Force.  The fact that an accused does not know to appeal to the AFBCMR does not excuse an untimely application.  The application should be denied on that basis.  

There is no legal basis for upgrading 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 and the convening authority.  These matters were considered in review of the sentence.  The applicant was thus afforded all rights granted by statue and regulation.  In this case, the convening authority reduced the applicant’s sentence to confinement.  The applicant provides no compelling rationale to mitigate the approved dishonorable discharge given the circumstances of the case.

While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant’s service was dishonorable.  There are consequences for criminal behavior – the military judge, convening authority and the appellate court believes a dishonorable discharge was appropriate consequence that accurately characterized his military service and his crimes.  Even the applicant agrees.  The materials in support of the applicant are not persuasive.  The process is commonplace.  In fact, beginning in 2001 prisoners in Kentucky were required to fill out an application after completion of their sentences.  

The applicant presented many of the same arguments to the court-martial as in his application.  His father testified about the good Christian home in which the applicant was raised.  He also talked about the influence of the applicant’s grandfather, who was in the military.  The applicant presented evidence that he had recently been baptized.  In total, the applicant presented 40 documents evidencing good conduct and achievements, including 21 character statements.  The military judge considered all the evidence and determined a dishonorable discharge, 54 months confinement and reduction to E-1 fit the applicant and his crimes.  The sentence was well within the legal limits and was an appropriate punishment for the offenses committed.

The applicant has identified no error or injustice related to the sentence.  His later good conduct does not justify criminal behavior during his enlistment, which appropriately ended with a dishonorable discharge.  The applicant presents insufficient evidence to warrant upgrading the dishonorable discharge, and does not demonstrate an equitable basis for relief.  In addition, his request, made more than three years after his conviction and discharge is untimely. 

ALSA/JAJM complete evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and stated that he feels like the Advisory Board just simply denied him without even looking at the whole package.  He believes before someone can make a fair decision, they should look at the present as well as the past.  Like he said in his package, he knows he did wrong and his service was dishonorable during that time.  But he would like for the Board to look at it like this.  If every time the Board did something wrong, no matter how big or small, would the Board want someone to not give the Board a second chance.  Would the Board want to suffer the rest of the their life for it?  He feels that he has done all he can do to make himself a better and more productive citizen.  He hopes the Board can see what progress he has made and he also hopes that it can prove that he deserves an upgrade of his dishonorable discharge.  He does not care what it is upgraded to; he feels that decision would best be decided by the Board.  He knows he cannot go back in time and undo the wrong he has done, he hopes the Board understands this too.  All he can do is move forward and learn from his mistakes.  He prays that God will guide the Board in making the decision the Board feels is right.  He would like to offer this in closing noting that he is not trying to be arrogant or funny, but it is the truth.  He has gone six years with a dishonorable discharge.  He would love to have it upgraded, but if for some reason the Board cannot, he would like for everyone to know that he does not have to have a piece of paper to tell him whether or not he has honor.  This is solely decided by God and by his loved ones and friends.  

In addition, the applicant’s wife also provided a personal statement of support for the Board to consider.

Applicant’s complete response, with attachment is at Exhibit E.

_________________________________________________________________

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 took notice of the applicant's complete submission in judging the merits of the case.  However, after thorough review of the evidence of record, it is our opinion that the comments of the office of the Judge Advocate General are supported by the evidence of record.  We find no evidence of error in this case and after thoroughly reviewing the applicant's submission, we do not believe he has suffered from an injustice.  We considered upgrading his discharge on the basis of clemency; however, due to the serious nature of the offenses committed, in the short period of time in which he served, we believe that the characterization of his discharge was proper and in compliance with the appropriate directives.  In the absence of persuasive evidence to the contrary, we find no basis upon which to favorably consider this application.

_________________________________________________________________

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.

_________________________________________________________________

The following members of the Board considered Docket Number BC-2003-00882 in Executive Session on 29 July 2003, under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 172 may 03.
    Exhibit D.  Letter, SAF/MRBR, dated 30 May 03.
	Exhibit E.  Applicant’s Response, dated 6 Jun 03

                                   
                                   Panel Chair