AIR FORCE DISCHARGE REVIEW BOARD HEARING RECORD

NAME  OF SERVICE ME'VIBER (LAST, FIRST MIDDLE INITIAL)

GRADE

AFSN/SSAN

TYPE BCD	x

PERSONAL APPEARANCE

AB

RECORD REVIEW

1--c-o_u·NsE_L_ _, NAME OF COUNSEL AND OR ORGANIZATION
YES	l'io
x

ADDRESS AND OR ORGANIZATION OF COUNSEL

MEMBER SITTING

L•••••••••••••••••••••••••••••••••••••••

HON

GEN	UOTHC

OTHER	DENY
x x x x
x

ISSUES

A91.05

INDEX NUMBER

A39.00

!l.XBUIITS SU!)MUTl!J) TO THE BOARJi
I	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 APPEARANCE

HEARl:"lG DATE	CASE NUMBER

16 Nov 2004	FD-2003-00403
APPLICANT'S YSSUE A.ND 'ntt' BOARD_'S DECJStONAL RATIONAL ARE DISCUS:SEO_ ON THE A'frACHE_ /\.'Oi F,:IJRCE-DISCHAROE REVIEW aoAR.D DECISIONAL RATI_ONALE

Case heard at Washington, D.C.

Advise applicant of the decision of the Board, the right to a personal appearance with/without counsel, and the right to submit an application to the AFBCMR.

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TO:
SAF/MRBR
550 C STREET WEST, SUITE 40 RANDOLPH AFB, TX 78150-4742

INDORSEMENT

DATE: !Mniiii4""""""""""

FROM:

SECRETARY OF THE AIR FORCE PERSONNEL COUNCIL
AIR FORCE DISCHARGE REVIEW BOARD 1535 COMMAND DR, EE WING, lRD FLOOR ANDREWS AFB, MD 20762·7002

AFHQ FORM 0-2077, JAN 00	(EF-V2)	Previous edition will be used

AIR FORCE DISCHARGE REVIEW BOARD DECISIONAL RATIONALE	CASE NUMBER

FD-2003-00403	

GENERAL:  The applicant appeals for an under honorable conditions (general) discharge.

The applicant appeared before the Discharge Review Board (DRB) via. vid o te b ,,n+; AFB, Texas, on 16 November 2004. He was represented by couns

The attached brief contains available pertinent data on the applicant and the factors leading to the discharge. Additional Exhibits presented by the applicant included Exhibit #6, a 15-page support package.
FINDINGS:  Upgrade of discharge is denied.

The applicant received a Bad Conduct Discharge, a punitive separation, as part of his sentence resulting from a Special Court-Martial conviction.  Under the provisions of 10 U.S.C. §1553, the only basis for a change of  a Bad Conduct discharge is clemency.  The applicant presented no evidence which the DRB believed warranted a grant of clemency.

ISSUES:

Issue 1. Applicant contends his bad conduct discharge (BCD) should be changed to a general discharge because no one (including himself, the convening authority, the reviewing authorities, or his military defense counsel) knew or considered that his special court-martial conviction would result in his having to register as a sex offender.  The .applicant contends that if this result had been known to the individuals mentioned
above, he would have been granted clemency in the form of a substitution of an administrative.discharge for his punitive discharge and therefore would not need to register as a sex offender.  The applicant submitted matters which show that his special court-martial conviction is a qualifying conviction under Texas law and thus requires hin;i to register as a sex offender.  He argues that if he had not received the punitive separation, he would not have to register, or in the alternative, that he could present that evidence to Texas law enforcement officials to argue that he should not have to register as a sex offender.  The DRB found this argument without merit.  The sex offender registration law presented by the applicant clearly demonstrates that it is the underlying conviction which leads to sex offender registration.  Therefore, the ORB concluded that change of the applicant's discharge from punitive to administrative was not warranted.

Issue 2.  Applicant argues that the fact his commander and some of the court-martial panel members preferred he receive an administrative separation warrants a change of the separation from a BCD to a general discharge.  The DRB found this issue without merit as the convening authority, armed with this information, made the conscious decision to approve the BCD.  The DRB concluded the discharge was appropriate for the reasons which were the basis for this case.

Issue 3.  Applicant argues that recent changes in the guidance found in the Manual for Courts-Martial regarding the handling of allegations of adultery warrant a change of his BCD to a general discharge.  In arguing for this change, the applicant cited several court-cases including two which had been reviewed by the appellate courts.  The DRB disagrees with the applicant that the holdings in the cited cases warrant a change in his discharge.  The ORB believed that the member's contentions were without merit and his BCD remains appropriate.

Issue 4.  The applicant contends he had an affirmative defense of mistake of fact concerning the age of the victim and thus he should be granted clemency.  This argument was raised by the applicant at his trial and	

apparently was not believed by the court-martial panel.  The DRB could find no reason to disregard that finding or upgrade his discharge on that basis.

Issue 5.  Finally, the applicant contends his sentence was disproportionate with that received by his co­ defendant who, according to the applicant, did not receive a BCD.  The DRB found this argument unpersuasive and believed his BCD was appropriate.

CONCLUSIONS:  The Discharge Review Board concluded that the applicant's punitive discharge by Special Court-Martial is appropriate under the facts and circumstances of this case and there is insufficient basis, as an act of clemency, for a change of discharge.

Attachment: Examiner's Brief