RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 98-01952 (Cs#2)
                             INDEX CODE 106.00
                             COUNSEL:  None

                             HEARING DESIRED:  No
_________________________________________________________________

APPLICANT REQUESTS THAT:

That his 1982 under-other-than-honorable-conditions (UOTHC)  discharge
be upgraded to honorable.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was discharged before the [civilian] trial, which was held in 1983.
The [civilian] trial of the charges on which his UOTHC  discharge  was
based resulted in a finding of no sexual misconduct. He was  acquitted
of many of the charges and the jury hung on one. He was  found  guilty
of a misdemeanor, False Imprisonment; there  were  no  sexual  assault
convictions.  In addition, he provides a 31 March  1998  letter,  with
attachments,  from  a  Colorado  deputy  district  attorney  which  he
believes shows the one witness committed perjury because at  the  time
she accepted a ride she said she was going to work when, in fact,  she
was unemployed. That perjury contributed to his discharge.  He  was  a
master sergeant with over 18 years of service.

A copy of applicant's complete submission,  with  attachments,  is  at
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The following information was extracted from the applicant’s  military
personnel records (Exhibit B), to include  the  transcription  of  his
administrative discharge board:

The applicant enlisted in the Regular Air Force  on  6 November  1963.
While stationed at Lowry  AFB,  CO,  the  applicant  was  arrested  by
civilian authorities and charged with criminal acts of sexual  assault
against three  women.  Prior  to  the  civilian  criminal  trial,  the
applicant’s commander initiated  action  by  letter  of  notification,
dated 19 March 1992,  that  he  proposed  to  effect  the  applicant’s
discharge under AFM 39-12, Chapter 2, Section B, Paragraph 2-15b,  for
misconduct,   specifically   sexual   perversion,   with    a    UOTHC
characterization.

The specific bases for the recommended discharge were:

            a.  On 9 March 1982, he took  indecent  liberties with [Ms
C---, who was 15 at the time], by taking photographs of her nude  body
with the intent to gratify his own sexual desires.
            b.  On 9 March 1982, he committed sodomy with [Ms C---].
            c.  On 24 February 1982, he committed an indecent  assault
upon [Ms L---] by fondling her breasts with the intent to gratify  his
own sexual desires.
            d.  On 6 May 1981, he raped [Ms H---].
            e.  On 6 May 1981, he wrongfully committed indecent,  lewd
and lascivious acts with [Ms  H---]  by  forcing  her  to  remove  her
clothing  and  get  into  the  back  seat  of  his  vehicle  while  he
photographed her.
            f.  On 6 May 1981, he wrongfully communicated to [Ms H---]
a threat to use a gun if she did not get into his vehicle.

After consulting with counsel, the applicant opted to  have  his  case
heard before a Board of Officers (BOO).

The BOO met on 26-27 May  1982  to  determine  whether  the  applicant
should be discharged prior to the expiration of his  term  of  service
because of sexual perversion. Applicant was  represented  by  military
and civilian counsel.  None of the three alleged victims were  present
at the BOO. Two of the women (Ms C---  and  Ms  H---)  provided  sworn
statements.  Applicant’s counsel objected to the  written  statements;
however, AFR  11-31  provides  that  hearsay  evidence  is  admissible
provided the Legal Advisor (LA) determines that there is  an  adequate
safeguard for the truth. The LA in this  case  determined  there  were
adequate safeguards for the truth.  The Government  sent  invitational
orders to each of the victims. Ms H---  was  pregnant  and  could  not
travel; Ms C--- was in Colorado and  receipted  for  the  invitational
travel order; Ms L--- did not receipt for the order and (according  to
the District Attorney) she had apparently become somewhat recalcitrant
to come  back  to  Colorado  and  testify.  The  LA  advised  that  an
administrative board was not required to follow the  formal  rules  of
evidence prescribed by trials by court-martial and neither does such a
board employ the same rigorous standard of beyond a  reasonable  doubt
that criminal courts utilize. Administrative boards were to  find  the
facts  from  the  best  evidence  that  was  available  and  employ  a
preponderance of the evidence test in making its findings. The LA also
explained the various recommendations the BOO  could  make  consistent
with its  findings;  i.e.,  retention;  honorable,  general  or  UOTHC
discharge for  misconduct;  or  honorable  or  general  discharge  for
unsuitability according to Chapter  2,  Section  A.  If  any  form  of
discharge was  recommended,  the  BOO  had  to  determine  whether  to
recommend probation and rehabilitation (P&R).

The BOO found that the applicant had  committed  the  above-referenced
acts of  sexual  perversion  and  recommended  he  be  discharged  for
misconduct with a UOTHC discharge without P&R.

Legal review on 22 June and on 16 July 1982 found the  BOO  record  of
proceedings legally sufficient and recommended the discharge authority
approve the findings and recommendations, which he  did.  Because  P&R
was not considered appropriate and the applicant had over 16 years  of
service, his case required lengthy service review.

Upon recommendation of the Air Force Personnel Board, the SAF,  acting
through the Deputy for Air Force Review Boards, denied lengthy service
probation on 9 August 1982 and directed  the  approved  administrative
discharge be executed.

As a result, on 11 August 1982, the applicant  was  separated  in  the
grade of master sergeant with a UOTHC discharge, AFM 39-12, Misconduct-
Sexual Perversion. He had 18 years, 9 months  and  6  days  of  active
service.

According to the 16 March 1984  mittimus  provided  in  Exhibit  A,  a
Colorado civilian  court  convicted  the  applicant  of  a  Class  Two
misdemeanor  (False   Imprisonment  of   Ms  C---)  and  a  Class  Two
misdemeanor (Assault in the Third Degree). He was  sentenced  to  jail
for a total of six months (concurrent sentences), three of which  were
suspended.

Pursuant to the Board's request, the Federal Bureau of  Investigation,
Washington, D.C., provided an investigative report which  is  attached
at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

The Associate Chief, AFLSA/JAJM, reviewed  the  appeal  and  indicates
that the letter from a Colorado prosecuting attorney reflects that the
attorney was not aware of any untruthful statements made by [Ms L---].
 There is no indication the Colorado Supreme Court, or any other legal
authority,  found  any  improprieties  in  the  applicant’s   civilian
conviction. Even if one accepted the unlikely contention that [Ms L---
‘s] sworn statement contained perjury, the applicant’s discharge board
considered a  substantial  amount  of  evidence  over  and  above  the
statement. The evidence included statements from two other victims and
sworn testimony from a police department  detective  and  a  sheriff’s
department investigator. In  short,  even  if  the  discharge  board’s
finding on the allegation involving  [Ms  L---]  were  completely  set
aside, the applicant’s  misconduct  toward  the  other  victims  would
continue to stand. That misconduct, by itself,  sufficiently  supports
the UOTHC discharge. There are no legal  errors  requiring  corrective
action. Denial is recommended.

A copy of the complete Air Force evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant  contended  that  the  advisory’s  facts  regarding  his
sentencing are incorrect [which is true]. Further, the Associate Chief
misrepresented the evidence regarding  the  prosecutor’s  letter.  The
attached police reports show that Ms L--- committed perjury  when  she
testified  she  was  going  to  work.  The  deputy  district  attorney
disclaimed knowledge of the perjury but did not deny that the  perjury
occurred. As for the  discharge  board,  there  was  no  corroborating
evidence to substantiate the allegations  of  misconduct  or  physical
substantiating evidence presented.  The  board  reached  its  decision
solely on the basis of unsubstantiated allegations.  Because  of  this
fact, the  recently  discovered  perjury  of  Ms  L---  assumes  great
significance. The board proceedings show that the  members  asked  the
presiding officer if they could return something other than  an  Other
Than Honorable discharge verdict; the  presiding  officer  incorrectly
advised them that they  could  not.  This  clearly  demonstrates  that
decision might have been different had there been any other mitigating
evidence. While the evaluation asserts that his misconduct towards the
other alleged  victims  sufficiently  supports  the  discharge,  those
allegations were discredited by the acquittal and dismissal of all  of
the charges on which the discharge action was based.

Applicant’s complete rebuttal, with attachments, is at Exhibit F.
_________________________________________________________________

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 probable error or injustice. After a thorough  review
of the evidence of record  and  applicant’s  submission,  we  are  not
persuaded that his UOTHC discharge should be  upgraded  to  honorable.
Applicant’s contentions are duly noted; however, we do not find  these
assertions, in and by themselves, sufficiently persuasive to  override
the evidence of record. The findings and recommendations of  the  1982
BOO  were  found   legally   sufficient   and   without   prejudicial,
administrative  or  procedural  errors.  The  applicant  has  provided
insufficient evidence demonstrating that the characterization  of  his
discharge was inappropriate to the  existing  circumstances.  We  also
noted that, according to the  FBI  report,  the  applicant’s  criminal
behavior has continued after his  discharge.  Consequently,  upgrading
his discharge on the basis of clemency is totally unwarranted given
his post-service history. In view of the above and  absent  persuasive
evidence to the contrary, we find absolutely  no  basis  to  recommend
granting the relief sought.
_________________________________________________________________

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.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 17 August 1999, under the provisions of  AFI  36-
2603:

                  Ms. Charlene M. Bradley, Panel Chair
                  Mr. Mike Novel, Member
                  Mr. Philip Sheuerman, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 29 Jul 98, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  FBI Report.
   Exhibit D.  Letter, AFLSA/JAJM, dated 10 Dec 98.
   Exhibit E.  AFBCMR, dated 18 Jan 99.
   Exhibit F.  Letter, Applicant, dated 28 Jan 99, w/atchs.




                                   CHARLENE M. BRADLEY
                                   Panel Chair