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AF | BCMR | CY1998 | 9801271
Original file (9801271.pdf) Auto-classification: Denied
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  98-01271 
COUNSEL:  NONE 

HEARING DESIRED:  NO 

NQ'IJ  1 3 '@ 

Applicant  requests  upgrade  of  his  14  December  1994  bad  conduct 
discharge.  Applicant's submission is at Exhibit A. 

The appropriate Air Force office evaluated applicant's request and 
provided  an  advisory  opinion  to  the  Board  recommending  the 
application  be  denied  (Exhibit  C) . 
The  advisory  opinion  was 
forwarded to the applicant for review and response  (Exhibit D).  As 
of this date, no response has been received by this office. 
After  careful  consideration  of  applicant's  request  and  the 
available  evidence  of  record,  we  find  insufficient  evidence  of 
error  or  injustice  to  warrant  corrective  action.  The  facts  and 
opinions stated in the advisory opinion appear to be based on the 
evidence of record and have not been rebutted by applicant.  Absent 
persuasive evidence applicant was denied rights to which entitled, 
appropriate regulations were not followed, or appropriate standards 
were not applied, we find no basis to disturb the existing record. 
Accordingly, applicant's request is denied. 

The Board  staff is directed  to  inform applicant of  this decision. 
Applicant  should also be  informed that this decision is final and 
will  only  be  reconsidered upon  the  presentation  of  new  relevant 
evidence  which  was  not  reasonably  available  at  the  time  the 
application was filed. 
Members  of  the  Board,  Messrs.  David  C.  Van  Gasbeck, Richard  A. 
Peterson, and  Jackson A. Hauslein, considered  this application on 
20 October  1998  in  accordance  with  the  provisions  of  Air  Force 
Instruction 36-2603 and the governing statute, 10 U.S.C. 1552. 

Exhibits: 
A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C.  Advisory Opinion 
D.  SAF/MIBR Ltr Forwarding Advisory Opinion 

hair 

MEMORANDUM FOR AFBCMR 

FROM:  AFLSA/JAJM 

112 Luke Avenue, Room 343 
Bolling AFB, DC 20332-8000 

5 August  1998 

Applicant’s request:  In an application dated 23 June 1998 

, the 

applicant, requests that his bad conduct discharge from the Air Force be upgraded to an 
honorable discharge.  The applicant’s bad conduct discharge went into effect on 14 December 
1994.  The application was not submitted within the three-year limitation provided by  10 U.S.C. 
1552(b) and is untimely.  The applicant states no reasonable basis for the untimeliness of his 
request. 

Facts of military justice action:  On  13 April  1991, a general court-martial at Hickam 

AFB, Hawaii convicted the applicant of three specifications under Article  134 of the UCMJ.  The 
first specification involved committing an indecent act upon his nine-year-old step-daughter by 
rubbing his penis on her bare buttocks until he ejaculated.  Another specification involved the 
applicant taking indecent liberties with his nine-year-old step-daughter by exposing his penis to 
her and directing her to look at and/or touch his penis with the intent to gratify his sexual desires. 
The third specification involved the applicant committing an indecent act upon his nine-year-old 
step-daughter by inserting his finger into her vagina with the intent to gratify his sexual desires. 
Contrary to his pleas, the applicant was convicted and sentenced to a bad conduct discharge, 
confinement for three years and reduction to E- 1.  The applicant’s conviction and sentence were 
affirmed during the appellant process.  The bad conduct discharge was executed on 14 December 
1994. 

Applicant’s contentions:  The applicant requests that his discharge be upgraded since he 
has been a model citizen ever since being discharged from active duty.  The applicant alleges that 
he has had a clean record since his release from confinement. The applicant claims he has been a 
steady worker and tax payer.  He alleges he was a student leader in collegiate programs and has 
volunteered his time helping the elderly and homeless.  The applicant states that the 
characterization of his discharge has hindered his productivity as a civilian. 

The applicant indicates that he was released early from confinement.  The applicant states 
that he graduated from college with a Bachelor of Arts degree in Business Communication with a 
3.1 cumulative grade point average.  The applicant also points out that he had no disciplinary 
infractions prior to the court-martial charges and contends that his service in the United States 

Air Force was honorable under the circumstances.  The applicant has provided no additional 
documentation supporting this request. 

Discussion:  The applicant’s application is beyond the statute of limitations.  The 

applicant’s request can be denied based upon the statute of limitations or based upon the merits. 
The  applicant has provided no compelling evidence to justify upgrading his bad conduct 
discharge to an honorable discharge. 

Regardless of the untimeliness of the applicant’s submissions, under AFI 36-3203, Air 

Force Board for  Correction of  Military Records, para 4.1, the applicant has the burden of 
proving sufficient evidence of probable material error or injustice.  The applicant has not carried 
his burden of proof.  The applicant’s court-martial was properly convened and had jurisdiction 
over the applicant and the offenses tried.  The decision of the court and sentence was ultimately 
affirmed by the Air Force Court of Military Review.  The applicant has made no allegations of a 
material error or injustice occurring during his court-martial proceedings.  A court-martial panel 
heard all of the evidence and found the applicant guilty beyond a reasonable doubt.  A bad 
conduct discharge is an appropriate punishment for the offenses the applicant has committed. 
Committing indecent acts upon a nine-year-old child is a serious and egregious offense.  A 
discharge upgrade is not warranted in this case. 

Recommendation:  The applicant’s request is untimely and should be denied for failing 

to comply with the statute of limitations.  Further, after reviewing the available records, I 
conclude that administrative relief by this office is not warranted.  The applicant has failed to 
provide a sufficient basis for upgrading his bad conduct discharge to an honorable discharge.  I 
recommend the Board deny this application based upon the statute of limitations, or, if waived, 
deny the application on its merits. 

/  LOREN S. PERLSTEIN 

Associate Chief, Military Justice Division 
Air Force Legal Services Agency 



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