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AF | BCMR | CY2000 | 9901382
Original file (9901382.doc) Auto-classification: Denied

                       RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:            DOCKET NUMBER:  99-01382
                       Index Code:  A70.00

                       COUNSEL:  AMERICAN LEGION

                       HEARING:  NO

APPLICANT REQUESTS THAT:

His narrative reason for separation, “Request for Discharge in Lieu of
Trial by Court-Martial” be changed and  that  his  “Under  Other  Than
Honorable Conditions” (UOTHC) character  of  service  be  upgraded  to
honorable.

APPLICANT CONTENDS THAT:

The reasons the applicant believes the  records  to  be  in  error  or
unjust and the evidence submitted in support  of  the  appeal  are  at
Exhibit A.

STATEMENT OF FACTS:

The relevant facts pertaining to this application, extracted from  the
applicant's military records, are contained in the letters prepared by
the appropriate offices of the Air Force.  Accordingly,  there  is  no
need to recite these facts in this Record of Proceedings.

Pursuant to the Board's request, the Federal Bureau of  Investigation,
Washington, D.C., indicated that on the basis of  the  data  furnished
they were unable to locate an arrest record (Exhibit C).

Additionally, pursuant to the Board’s request, the Air Force Office of
Special Investigation (AFOSI) provided a copy of the AFOSI  Report  of
Investigation pertaining to the case (Exhibit D).

AIR FORCE EVALUATION:

The Military Personnel  Management  Specialist,  AFPC/DPPRS,  and  the
Senior  Attorney-Advisor,  AFPC/JA,  reviewed  the   application   and
recommended denial.

Complete copies of the evaluations are attached at Exhibits E and F.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel reviewed the Air Force  evaluation  and  provides  a  response
which is attached at Exhibit H.

At the Board’s request, applicant provided  a  copy  of  his  original
divorce decree, wherein his former spouse was awarded custody  of  the
minor children (Exhibit J).

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  thoroughly
reviewing the evidence of  record,  we  are  not  persuaded  that  the
applicant’s narrative reason for discharge or  the  character  of  his
service  should  be  changed.   The  statements   applicant   provided
attesting to his character are duly noted.  However,  after  reviewing
the AFOSI Report of Investigation, we note that  in  addition  to  the
applicant’s daughter indicating that the applicant had taken  indecent
liberties with her, another victim reported that  applicant  had  also
taken indecent liberties with her.  It appears that  this  victim  had
nothing to gain  in  revenge  by  bringing  forth  these  allegations.
Therefore, while the applicant’s daughter has recanted her  story,  we
find no such documentation from this other victim.   In  our  opinion,
there was something more to this entire incident than just  the  story
of an impressionable child.  As the Senior Attorney-Advisor indicates,
applicant had the opportunity to go to trial and challenge the charges
made against him and make the  government  prove  its  case;  however,
after consulting with counsel, he chose not to do so.   The  applicant
now wants this Board to upgrade the discharge and change the narrative
reason for his separation, presumably  on  the  basis  that  no  civil
charges for molestation or abuse were ever prosecuted and that he  has
been awarded the custody of his children.  However,  in  view  of  the
foregoing,  we  find  no  impropriety  in  the   characterization   of
applicant's discharge.  It appears that responsible officials  applied
appropriate standards in effecting the separation, and we do not  find
persuasive evidence that pertinent regulations were violated  or  that
applicant was not afforded all the rights to  which  entitled  at  the
time  of  discharge.   We  conclude,  therefore,  that  the  discharge
proceedings were proper and  characterization  of  the  discharge  was
appropriate to the existing  circumstances.   Further,  we  also  find
insufficient evidence to warrant a recommendation that  the  discharge
be upgraded on the basis of clemency.  We have considered  applicant's
overall  quality  of  service,  the  events  which  precipitated   the
discharge, and available evidence related to  post-service  activities
and accomplishments.  On balance, we do not believe that  clemency  is
warranted.




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  1  February  and  19  April  2000,  under  the
provisions of AFI 36-2603:


                 Mr. Terry Yonkers, Panel Chairman
                 Mr. Philip Sheuerman, Member
                 Mr. George Franklin, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 16 Oct 98, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. AFOSI ROI-withheld.
      Exhibit E. Letter, AFPC/DPPRS, dated 17 Aug 99.
      Exhibit F. Letter, AFPC/JA, dated 1 Oct 99.
      Exhibit G. Letter, SAF/MIBR, dated 15 Oct 99.
      Exhibit H. Counsel's response, dated 27 Oct 99, w/atchs.
      Exhibit I. Letter, AFBCMR, dated 3 Feb 00.
      Exhibit J. Court Documents, dated 29 Oct 85.




                                   TERRY YONKERS
                                   Panel Chair

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