RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-00453
						INDEX CODE:  110.02

    							COUNSEL:  NONE

    							HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded.  

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APPLICANT CONTENDS THAT:

He is very sorry and regrets what happened.  He was young, away from home and having problems with his marriage.  His alcohol drinking and partying was out of control.  He has spoken to his ex-wife, the victim’s mother, while he was incarcerated.  They both expressed apologies and forgiveness.  He’s older and wiser now and realizes how much pain and stress he has caused both families.  It was his childhood dream to be in the Air Force.  He has been employed at Chelsea Catering Corporation for the past 15 years.  He requests that the Board take a serious look at his request.  

In support of his request, applicant’s provides a personal statement and a letter from his employer.  His submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 1 February 1971, the applicant contracted his initial enlistment in the Regular Air Force.  Prior to the events under review, he was progressively promoted to the grade of staff sergeant (E-5), effective and with a date of rank of 1 June 1973.  He continued to enlist with his last reenlistment occurring on 30 April 1982, for a period of 6 years.  Since his promotion to staff sergeant his AF Forms 910, TSgt, SSgt and Sgt Performance Reports, for the period beginning 3 December 1982 through 15 April 1986 his overall evaluations were 8, 7, 9, and 9 respectively (9 being the highest rating).  

On 13 October 1988, contrary to his plea, a general court-martial found the applicant guilty of committing indecent acts upon the body of a minor female in violation of Article 134 of the uniform Code of Military Justice.  He was sentenced to be discharged with a bad conduct discharge, confined for 3 years, forfeiture of four hundred thirty eight dollars ($438.00) per month for 3 years and reduced to the grade of airman basic.  The sentence was approved by the convening authority on 6 May 1987 and affirmed on 1 July 1987.

On 7 December 1987, while serving in confinement, the applicant was discharged with a bad conduct discharge.  He had served 16 years and 2 months on active duty.  The period 2 April 1987 through 7 December 1987 was time lost due to confinement.  

The remaining relevant facts pertaining to applicant’s court-martial extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied.  JAJM states that a review of the record of trial reveals that from February 1985 to July 1985 the applicant's wife was hospitalized.  The applicant was the sole caregiver of his stepdaughter during his wife's hospitalization.  His stepdaughter was only ten (10) years of age when he sexually assaulted her.  JAJM notes that following a failed polygraph examination and an advisement of rights, the applicant admitted to three (3) incidents of sexual assault.  Additionally, the record reveals that the applicant was thirty-two (32) years old when the offenses occurred.  JAJM states that the maximum punishment for the offenses of which the applicant was found guilty was a dishonorable discharge, confinement for 5 years, total forfeiture of all pay and allowances, and reduction to airman basic.  As a non-commissioned officer, the applicant had a duty to serve as an example to airmen of lesser rank.  Clemency should only be granted when the applicant has demonstrated that the degree of punishment in relation to the crime was a clear injustice.  JAJM opines that he has made no showing.  AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 28 May 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, this office had 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 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 thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust.  We believe that the gravity of his offense is supported by the service characterization he received.  In this regard, we are in agreement with the assessment of the Air Force office of primary responsibility and agree with their recommendation.  Therefore, we find no basis upon which 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 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.

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The following members of the Board considered this application AFBCMR Docket Number BC-2004-00453 in Executive Session on 1 July 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 24 Feb 04 w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, 14 May 04.
    Exhibit D.  Letter, SAF/MRBR, dated 28 May 04.

                                   Panel Chair