RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-00383
								INDEX CODE:  110.02
								COUNSEL:  NONE
								HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His undesirable discharge be upgraded to general (under honorable conditions).
_________________________________________________________________

APPLICANT CONTENDS THAT:

For many years he has felt terrible for the German woman who was raped in the back seat of his car.  He should have reported it to the Air Police or to his Squadron First Sergeant.  Looking back now, he feels he did not report the crime because he was afraid of what it could do to his marriage, his career and he did not want to believe that his friend had committed this crime in the back seat of his car.  The German court convicted him of rape because his car was used in the crime.  He was sentenced to one year in jail but was later probated.  He was court-martialed and discharged from the Air Force with an undesirable discharge.  He believes that the discharge he received was too severe especially when the witness testified that he tried to help and did not commit the crime.  It has been over thirty years since this injustice and would sincerely appreciate an upgrade of his discharge to general.  He is a licenate (Associate Minister) for the Cumberland Presbyterian Church in Providence, KY.  He is also the founder and director of a youth gospel choir, member of the Order of Kentucky Colonels and serves on the County Executive Democratic Committee.

In support of his request, he submits a personal statement, supporting letters from his wife and daughter, character reference letters, newspaper clippings and certificates of achievement.  The applicant’s submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 16 August 1968, the applicant enlisted in the Regular Air Force in the grade of airman basic (E-1) for a period of 4 years.  He was progressively promoted to the grade of sergeant (E-4), effective and with a date of rank of 1 February 1971.  

From 19 February 1969 to 26 March 1969, he was charged with Absence Without Leave (AWOL).  For this incident, he was convicted by a Summary Court-Martial.  He was sentenced to confinement at hard labor for 30 days.

On or about 1 August 1973, without proper authority the applicant failed to go at the time prescribed to his appointed place of duty.  For this incident, he received a letter or reprimand.

From 21 May 1973 to 22 May 1973, he was confined in a civilian jail.  He was charged with rape.  Based on a translation of a letter from civil authorities to the applicant’s commander, dated 7 May 1974, the applicant was sentenced to one-year of imprisonment with probation.  

On 17 May 1974, in accordance with AFM 39-12, Chapter 2, Civil Court Conviction, the commander initiated discharge proceedings against the applicant.  This action was based on the applicant’s conviction by a civil court for rape.  The applicant was advised of his rights in this matter.  After consulting military legal counsel, the applicant requested a hearing before an administrative discharge board.  A Board of Officers convened to hear the case on 23 July 1974.  The applicant was present and was represented by counsel.  After hearing the testimony and reviewing the evidence, the board recommended that he be discharged from the service for misconduct because of a civil court disposition with an undesirable discharge.  On 23 August 1974, the base staff judge advocate recommended to the base commander that the applicant be retained in the Air Force or if the commander felt retention was inappropriate, the applicant be honorably discharged.  On 28 August 1974, the commander recommended that the applicant be discharged from the Air Force with an honorable discharge.  On 27 September 1974, in a legal review by the Headquarters United States Air Forces in Europe (USAFE) of the discharge case file, the deputy staff judge advocate found it legally sufficient and recommended that the applicant be discharged from the Air Force for misconduct because of civil court disposition with an undesirable discharge, without the opportunity for probation and rehabilitation.  On 30 September 1974, the discharge authority directed that the applicant be discharged from the Air Force under the provisions of AFM 39-12, Chapter 2, result of a civil court disposition, with an undesirable discharge.  The applicant was discharged on 16 October 1974 with an under other than honorable conditions discharge.  He served 6 years, 1 month and 29 days on active duty.  Time lost was 37 days due to AWOL and confinement.

Pursuant to the Board’s request, the FBI provided a copy of an Investigative Report, No. XXXXXXXXX, which is at Exhibit E.
_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommends the application be denied.  DPPRS states that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and the applicant has not identified any errors or injustices warranting a change of his discharge.  The DPPRS evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 April and 29 April 2004, copies of the Air Force evaluation and FBI report were sent to the applicant for review and comment.  As of this date, this office has not received a response.

_________________________________________________________________

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 consideration of the applicant’s request, we have seen no evidence indicating that the applicant was improperly discharged or that an upgrade of the approved service characterization based on the evidence presented is warranted.  It appears that responsible officials applied appropriate standards in effecting the separation, and the applicant has not provided persuasive evidence demonstrating that pertinent regulations were violated, he was not afforded all the rights to which entitled at the time of discharge or that his superiors abused their discretionary authority.  We have noted the information provided by the applicant related to his post service activities.  However, we do not find this evidence sufficient to warrant favorable consideration of the applicant’s request based on clemency.  It has been more than 29 years since the applicant’s discharge, yet the majority of the evidence pertaining to his post service adjustment relates to only the last five to ten years.  In our view, this does not provide adequate evidence that the applicant has and will continue to maintain the standards of good citizenship over an extended period of time.  We therefore agree with the 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.  Accordingly, we find no basis to recommend granting the relief sought in this application.  

_________________________________________________________________
THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 this application in Executive Session on 8 June 2004 under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number 04-00383 was considered:

     Exhibit A.  DD Form 149, dated 18 Dec 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRS, dated 7 Apr 04.
     Exhibit D.  Letter, SAF/MRBR, dated 9 Apr 04.
     Exhibit E.  Letter, AFBCMR, dated 29 Apr 04, w/FBI Report.

                                  Panel Chair