RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  97-02914
            INDEX CODE:  A83.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


_________________________________________________________________

APPLICANT REQUESTS THAT:

His dismissal be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His dismissal was inequitable because it  was  based  on  an  isolated
incident in 30 months of service with  no  other  adverse  actions  or
incidents.

There were no aggravating circumstances or other negative factors that
affected his performance of duty.

His conduct and performance ratings and behavior were  above  average,
including awards and letters of commendation.

Clemency documents  support  the  assertion  that  sexual  orientation
impartially influenced the discharge.

His acts stemmed from immaturity, intoxication, and curiosity.

All members involved in the allegations were consenting adults without
coercion.

His “victim” stated repeatedly he did not believe he was the victim of
an indecent assault.

The punishment he received was too harsh; it was much worse than  most
people get for the same offense.

In support of his appeal, the applicant provided a copy of  a  DD Form
293, Application for the Review of Discharge or Dismissal
from the Armed Forces of the United States, supportive statements, and
extracts from his military personnel records.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant  was  voluntarily  ordered  to  extended  active   duty   on
31 Dec 88.

On 16 Jul 91, the applicant was convicted by general court-martial  of
the  following  specifications:   (1)  on  20  Oct  90  or  21 Oct 90,
wrongfully and dishonorably committing an indecent act by touching and
rubbing an airman’s thigh, groin area and chest; (2) on or about 1 Aug
90  and  on  or  about  31  Oct  90,  wrongfully,  dishonorably,   and
disgracefully compromising his standing as an officer by allowing  and
encouraging an enlisted person to address him by his  first  name,  by
confiding to the same enlisted person that he was homosexual, and,  by
drinking alcoholic beverages with the enlisted member in the  airman’s
dormitory room; (3) on or about 29 Sep 90, wrongfully and dishonorably
committing an indecent assault upon an enlisted member,  a  person  of
the same sex not his spouse, by repeatedly touching the airman’s knee,
and, repeatedly putting his arm around the  airman’s  shoulders,  with
the intent to gratify his lust or sexual desire, to  the  disgrace  of
the armed forces; and (4) on or about 1 Sep 90 and on or about 30  Oct
90,  wrongfully,  dishonorably,  and  disgracefully  compromising  his
standing as an officer by allowing and encouraging an enlisted  person
to refrain from rendering a salute when otherwise required by military
customs and courtesies,  by  allowing  and  encouraging  the  enlisted
member to address him by his first name,  by  confiding  that  he  was
homosexual, and, by drinking with and supplying alcoholic beverages to
the  enlisted  person  19  years  of  age  in  the  enlisted  person’s
dormitory.  He was sentenced to a dismissal and to be confined  for  a
period of six months.  The convening authority approved  the  sentence
as adjudged.

On 3 Nov 94, the approved sentence of the general court-martial having
been affirmed, the applicant’s dismissal was ordered  into  execution.
The dismissal was executed on 30 Nov 94.  He was credited with 5 years
and 11 months of active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and recommended denial.  JAJM noted the applicant’s  contentions  that
his dismissal was unjust  for  several  reasons.   They  included  his
belief that the isolated incidents  did  not  outweigh  his  otherwise
honorable service, that he was dealt with more severely because of his
sexual orientation, that the acts were a result of alcohol consumption
and immaturity, not criminal intent, and that  there  really  were  no
victims of his crimes.  According to JAJM, the applicant’s  assertions
evidenced a misunderstanding of two important principles  of  military
justice.  The first is that conduct that may not be  criminal  in  the
civilian community may be criminal in  the  military  community.   The
second is that officers are held to a higher standard of conduct  than
enlisted members.  These two principles have not only been  upheld  by
the United States Supreme Court, they are taught to every  person  who
enters military service.  JAJM believed it was important to note  that
the applicant received his  military  education  through  a  four-year
Reserve Officer Training Corps (ROTC)  program,  in  which  he  was  a
distinguished  graduate.   He  also  had  two  years  of  active  duty
experience at the time he committed  the  offenses.   Thus,  it  seems
clear that the applicant had to understand his responsibilities as  an
Air Force officer and the consequences that would naturally  follow  a
violation of that trust.

JAJM indicated that throughout his legal  proceedings,  the  applicant
tried to characterize his actions as fraternization, which at the time
was not a criminal offense.   However,  the  military  judge  and  the
judges on the courts of appeal recognized that the key factor in  this
case was the applicant’s compromised officership, not the relationship
he attempted to develop with subordinates.  Throughout the trial,  the
appellate review, and his petition, the applicant has tried to  assert
that there were no victims of his actions.  However, anyone  reviewing
the applicant’s record of trial can easily  identify  the  victims  in
this case to be the airmen targeted by the applicant  and  the  United
States Air Force.  The enlisted members, who were taught to treat  all
officers with  respect,  were  told  by  the  applicant  that  it  was
permissible to disregard the customs  and  courtesies  that  accompany
respect in the military.  Soon thereafter, the same  enlisted  persons
found themselves resisting the applicant’s  sexual  advances.   It  is
hard to imagine how these airman could then  be  asked  to  trust  the
applicant with life or death decisions (such as control  over  nuclear
weapons) when they could not trust him to avoid  offensively  touching
them.

In JAJM’s view, the applicant’s lack of judgment, self-discipline  and
respect for the military’s code of conduct  could  only  have  led  to
contempt from those enlisted members, and any other enlisted personnel
who became aware of the applicant’s actions.  Contempt  is  contagious
and can be easily spread throughout an organization.   Although  these
fundamental concepts were lost on the applicant, the military  justice
system  continues  to  recognize  that  respect  between  officer  and
enlisted personnel is a critical factor, if not the  critical  factor,
in  the  structure  of  military  discipline.   JAJM  concluded   that
administrative relief by their office was not appropriate.  JAJM  also
indicated  that  the  Board  was  not  authorized  to  set  aside  the
applicant’s court-martial conviction and there were  no  legal  errors
requiring a correction to the dismissal.

A complete copy of the JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 5 Jan
98 for review and response.  As of this date,  no  response  has  been
received by this office (Exhibit D).

_________________________________________________________________

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.  The evidence of  record
reveals that the applicant was convicted by general  court-martial  of
an indecent act, indecent assault, and compromising his standing as an
officer, resulting in his dismissal from the Air Force.   No  evidence
has been presented to indicate that the applicant’s dismissal from the
Air Force was improper.  In view of the above, and in the  absence  of
evidence to  the  contrary,  we  conclude  that  no  basis  exists  to
recommend  favorable  action  on  the  applicant’s  request  that  his
dismissal be upgraded to honorable.

_________________________________________________________________

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 4 May 99, under the provisions of AFI 36-2603:

      Mr. Terry A. Yonkers, Panel Chair
      Mr. Joseph A. Roj, Member
      Mr. Clarence D. Long III, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Oct 97, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 5 Dec 97.
    Exhibit D.  Letter, SAF/MIBR, dated 5 Jan 98.




                                   TERRY A. YONKERS
                                   Panel Chair