RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:               DOCKET NUMBER: BC-2003-02085 
  INDEX CODE: 110.00 

            COUNSEL: NONE

  HEARING DESIRED: NO

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APPLICANT REOUESTS THAT:

His prison term he received as a result of court-martial action be eliminated.

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APPLICANT CONTENDS THAT:

He was court-martialed for an offense that occurred in Huntsville, OH in December 1990 although he was stationed in Misawa AB, Japan at the time of the offense.  Mental health problems he was having interfered with his thinking.  He was not aware there was a time limit to submit an application.

The applicant's submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 03 December 1976. On 21 April 1992, he was tried by court-martial at Bergstrom AFB, Texas.  He was charged with indecent acts and liberties with a child, in violation of Article 34, UCMJ, and disobeying a noncommissioned officer, in violation of Article 91, UCMJ.  On 22 April 1992, he was found guilty in a trial by judge and sentenced to a bad conduct discharge, 30 months confinement, total forfeitures, and reduction to the grade of airman basic.  On 20 May 1992, the convening authority approved the sentenced as adjudged.  On 1 October 1992, he petitioned the United States Air Force Court of Military Review (now called the Air Force court of Criminal Appeals) to dismiss the charged violation of Article 91 on the grounds that the order forming its basis was not a lawful order.  The court affirmed his conviction and sentence on 18 April 1994.  The United States Court of Military Appeals denied relief under Article 67, UCMJ, on 26 October 1994. The applicant was separated on 4 November 1994, with a bad conduct discharge.  He was credited with 17 years, 7 months and 9 days of active duty service.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed the case and recommended denial. JAJM indicates the applicant states that he was not aware of the time limit and mental health problems interfered with his thinking.  A review of his medical records reveals that prior to the close of the Article 32 investigation, his mental health was questioned.  A mental health evaluation was completed and he was diagnosed with two conditions--pedophilia and alcoholism.  The mental health professional determined these conditions had no affect on his capacity to understand the nature of the proceedings.  He did not exhibit any mental health issues during his separation physical in December 1993 and he stated he was in good health.

AFLSA/JAJM states the applicant's implication that it was impossible for him to have committed the offense because he was not at the location of the alleged offense is without merit.  Though the original charge sheet indicated the indecent acts with a child occurred in December 1990 in Ohio, the charge sheet was amended prior to the court-martial indicating the offense occurred in Ohio between on or about 4 January 1991 and 27 January 1991.  The applicant was on leave in Ohio during the charged period.

The applicant was tried by a general court-martial and found guilty of the offenses.  The maximum punishment authorized for the offenses for which he was convicted was a dishonorable discharge, confinement for 8 years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  His sentence was well within the legal limits and appropriate punishment for the offenses committed.  The applicant provided no evidence to warrant a change in his sentence.

AFLSA/JAJMA complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that while he was in Japan he did seek mental health help from the doctor at the mental health clinic in Misawa.  His concern was that he was seeing little girls as sexual objects.  The doctor did not give him any medication or hospitalization.  He also saw a doctor while at Bergstrom AFB, but he didn't give him any medication or hospitalization either.  Please use this information when deciding his case.

A complete copy of the submission is at Exhibit E.

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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.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that a change in his sentence is warranted.   Applicant’s contentions are duly noted; however, we do not find these uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force. We agree with the recommendation of the Associate Chief of the Military Justice Division and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or an injustice. In view of the foregoing, we find no basis to recommend granting the requested relief.

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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-2003-02085 in Executive Session on 17 September 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Jun 03. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, undated.
    Exhibit D.  Letter, SAF/MRBR, dated 15 Aug 03.
	Exhibit E.  Applicant’s Response, dated 26 Aug 03.