RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00272 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His under other than honorable conditions (UOTHC) discharge be upgraded to general (under honorable conditions). _________________________________________________________________ APPLICANT CONTENDS THAT: He was not given correct advice from his defense lawyer. He was setup by the “so-called” victim’s father who was up on charges for something he did wrong. He was told that even if he was cleared of the charges, he would still be discharged. In support of his request, the applicant provides a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States. The applicant's complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 9 Jul 79, the applicant enlisted in the Regular Air Force for a period of six years, and was progressively promoted to the grade of staff sergeant. On 26 Jun 84, the applicant’s commander brought court-martial charges against him for one specification of offering to exhibit harmful matter to a minor at his on base quarters in violation of the California Penal Code and Article 134 of the Uniform Code of Military Justice (UCMJ). Specifically, the applicant hired a female babysitter to watch his young son, and told her she was welcome to watch x-rated movies on his VCR and look at pictures of “models” in some photo albums in the living room. Upon his departure, the baby-sitter viewed the material offered by the applicant. The albums contained hundreds of pictures of naked women, four pictures of male genitalia, and pictures of the applicant naked. On 29 Jul 84, after consulting with legal counsel, the applicant submitted a voluntary request for discharge in lieu of trial by court-martial. He understood if his request was approved he might be discharged with an UOTHC discharge. On 23 Jul 84, the wing commander accepted his request for discharge and recommended the group commander approve the applicant’s request. On 31 Jul 84, the group commander concurred with the wing commander’s recommendation, and recommended the applicant receive an UOTHC discharge. The Acting Staff Judge Advocate reviewed the case and found it legally sufficient to support separation and recommended the applicant’s request for discharge in lieu of trial by court- martial be approved and that he receive an UOTHC discharge. On 13 Aug 84, Headquarters Fifteenth Air Force approved the discharge in lieu of trial by court-martial and directed the applicant receive an UOTHC discharge. On 22 Aug 84, the applicant was discharged, under the provisions of AFR 39-10, Administrative Separation of Airmen, Chapter 4, Request for Discharge in Lieu of Trial by Court-Martial, and received an UOTHC discharge. He served on active duty for a total of 9 years, 8 months, and 26 days. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. On 4 Apr 11, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days. At the same time, the applicant was offered an opportunity to provide information pertaining to his activities since leaving the service (Exhibit D). The applicant provided a character letter from his pastor which is attached 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, based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander's discretionary authority. The applicant has provided no evidence which would lead us to believe the characterization of his service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. We considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis. Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought. _________________________________________________________________ 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-2011-00272 in Executive Session on 9 and 14 Jun 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Jul 10, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation, dated 22 Feb 11. Exhibit D. Letter, AFBCMR, dated 4 Apr 11. Exhibit E. Character Letter, dated 17 Apr 11. Panel Chair