AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME OF SERVICE MEMBER (LAST, FIRST MIDDU: INITIAL)

-GRADE	AFSN/SSAN

X PERSONAL APPEARANCE	RECORD REVIEW

YES	NO
x

NAME OF COUNSEL AND OR ORGANIZATION

ADDRESS AN

ORGANIZATION OF COUNSEL

MEMBERS SITTING	HON	GEN	uomc
x x x x

HEARING DATE
6 FEB 03

CASE NUMBER
FD2002-0380

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l ORDER APPOINTING THE BOARD
2	APPLICATION  FOR REVIEW OF DISCHARGE
3	LETTER OF NOTIFICATION
4	BRIEF OF PERSONNEL FILE COUNSEL'S RELEASE TO THE BOARD
ADDITIONAL EXHIBITS SUBMITTED AT TIME OF PERSONAL APPEARANCE

TAPE RECORDING OF PERSONAL APPERANCE
.SCHARG REVll":W BOARD Dl!CS ONAL RATIONALE

REMARKS

\
Case heard at Travis AFB, CA

Advise applicant of the decision of the Board, and the right to submit an application to the AFBCMR.

		
TO:	SAF/MIBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78150-4742		FROM:	SECRETARY OF THE AIR FORCE PERSONNE AIR FORCE DISCHARGE REVIEW BOARD 1535 COMMAND DR, EE WING, 3RD FLOOR ANDREWS AFB, MD 20762-7002	

L COUNCIL

AFHQ FORM 0-2077, JAN 00

(EF-V2)

Previous edition will be used.

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD2002-0380	

GENERAL:  The applicant appeals for upgrade of discharge to honorable and for a change in the reason and authority for the discharge and in the RE code.

The a plicant appeared and testified before the Discharge Review Board (DRB), without counsel, at
A on February 6, 2003.	HS, the applicant's father, also appeared and testified on behalf of the applicant.

The following additional exhibits w re submitted  at the hearing: Exhibit 5:	Applicant's Contentions; Exhibit 6: Character Letter fro	Community Presbyterian Church, 3 Feb 03; Exhibit 7:	

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. FINDINGS:  The DRB denies the requested relief.
The DRB finds that neither the evidence of record nor that provided by the applicant substantiates an inequity or impropriety that would justify an upgrade of the discharge or a change to the reason and authority for the discharge or RE code.

ISSUES: The applicant was discharged with a general discharge upon the recommendation of  an administrative discharge board. The record indicates the applicant was discharged after receiving a civilian conviction (pursuant to a guilty plea and a no contest plea - a plea that allows the applicant to avoid admitting guilt but that requires him to admit the evidence is sufficient to convict him beyond a reasonable doubt) on two counts of second degree (intentional) child abuse. The applicant was originally charged with first degree (intentional) child abuse, a more serious charge.

According to the record and the evidence adduced at the hearing, his 10-day-old son suffered head injuries (a hemotoma) and broken ribs (it was not clear from the record or the applicant's testimony how many ribs were broken) while in the applicant's care. The applicant's description of the incident differed somewhat from the account provided in his unsworn statement at the administrative discharge board. During the DRB, he indicated that to the best of his knowledge, the baby, who was being cradled in the applicant's arms, accidentally bumped his head on the couch post when the applicant tried to get up from the couch. The applicant had heard his older son (then approximately 18 months old) in the kitchen trying to get into the knife drawer. As he got up off the couch to attend to his older son, he his arms dropped (while continuing to hold the child) causing the baby to hit his head. Not realizing what he had done, he carried the baby into the kitchen. His administrative discharge board testimony, however, differed in that he stated he dropped the baby on the ground and left the baby on the ground when he went into the kitchen. He testified further that when he returned to the living room, he picked up the crying baby and started squeezing him to calm him down. At the DRB hearing, he stated he returned to the living room with the baby and began hugging him tightly with the baby over his shoulder in the same position one would use to burp a baby. He demonstrated a hugging/squeezing/patting motion that he felt "could have" broken the baby's ribs. He said he thought this was the only thing that might have resulted in the baby's broken ribs. He claims that neither he nor his wife noticed any bruises or had any idea the baby had been injured as

badly as it had. He also stated the baby had no other known health problems and that the baby's birth was quick and uneventful. Finally, he mentioned that his wife, who was talcing a shower at the time of the incident, was convicted of fourth degree child abuse. He stated he only pied guilty to intentionally hurting the child in order to prevent his wife from also being prosecuted for first degree child abuse. The applicant is divorced and has not seen his ex-wife or children since he began his 21-month prison term, which is now complete. The applicant was uncertain of the current health of the baby, though his father was aware there was some permanent brain damage.

Notwithstanding the applicant's ambiguous testimony and the lack of medical evidence in the case, it was clear to the DRB the evidence (particularly the description of the occurrence of the baby's injuries) did not support the applicant's account of the incident. The DRB was not convinced the applicant's actions, as he describes them, could have caused the injuries to the baby. In short, the DRB concluded the applicant was not being truthful about how he caused the baby's injuries. The DRB also did not believe the applicant pied guilty to intentionally breaking the child's ribs (and no contest to the head injuries) in an effort to avoid his wife's prosecution. There are two reasons it was difficult to accept this proposition. First, the DRB was not convinced he would admit guilt to such a heinous crime if the injuries were caused by accident as the applicant claimed. Second, if the crimes were actually an accident and his wife was not present in the room when the accident occurred, he could have cleared his wife with a simple explanation to the authorities or even by pleading no contest to the rib injuries. The DRB was not convinced the applicant pied guilty to a crime he did not commit, but rather that he pled guilty because he was guilty-the evidence in the file supports this conclusion.

Although the applicant did have acceptable duty perfonnance during his brief career, his crimes so outweigh his service that changing the character, the reason and authority, and the RE code would not be remotely in the best interests of the Air Force.

CONCLUSIONS: The Discharge Review Board concludes that the discharge was consistent with the procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority. Hence, the request for relief is denied.

Attachment: Examiner's Brief