RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS



IN THE MATTER OF:      DOCKET NUMBER:  01-02410

            INDEX NUMBER:  110.02

            COUNSEL:  AMERICAN LEGION

            HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His  under  other  than  honorable  conditions  (UOTHC)  discharge  be
upgraded to general (under honorable conditions).

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APPLICANT CONTENDS THAT:

He believes the decision of  the  Air  Force  Discharge  Review  Board
(AFDRB) was unjust.  He disagrees that the discharge  authority  acted
without inequity.  His records show that he enlisted in the Air  Force
with a previous medical and behavioral history and  that  he  was  not
able to meet the  standards,  physically  and  emotionally,  that  are
required for members of the armed services. There was nothing  in  his
actions that would have resulted in a less than honorable discharge.

When he  was  hospitalized  in  an  unsupervised  coed  medical/mental
evaluation facility, he was charged with having inappropriate  contact
with a female dependent of  a  retired  service  member.   He  further
states that his records do not indicate assault, rape or  violence  of
any kind.

He says when provided an option of discharge in lieu of court-martial,
he was frightened and 24 years of age, with the mind of an  18  or  19
year old and unable to cope with the stress and pressures of Air Force
life.  His counsel told him if he didn’t take the deal he  would  have
to go to  jail  and  at  the  time  he  didn’t  fully  understand  the
consequences  of  signing  the  request  for  discharge  or  the  true
possibilities had the case gone to trial.

He indicates that he’s been married  since  October  1988,  worked  at
various jobs and has been a law-abiding citizen.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 18 April 1984, the applicant enlisted in the Regular Air  Force  in
the grade of airman first class (E-3).  He  received  one  performance
report with an overall evaluation rating of 7.

On 14 January 1985, court-martial charges were preferred  against  the
applicant, for violation of Article  120,  Uniform  Code  of  Military
Justice (UCMJ), in that, on or about 10 September 1984, while  an  in-
patient in the mental ward  at  the  hospital  at  Dyess  AFB  TX,  he
committed the offense of carnal knowledge with a dependent daughter of
a retired military member.

On 17 May 1985, after consulting with counsel and having been  advised
of his rights, applicant requested discharge in lieu of trial by court-
martial in accordance with AFR 39-10, chapter 4.  In  his  request  he
indicated his understanding that he could  be  approved  for  a  UOTHC
discharge, regardless of the recommendation and that he was  aware  of
the adverse nature of such a discharge, the possible consequences  and
that it may deprive him of veterans benefit.

On 24 May 1985, the squadron  commander  recommended  the  applicant’s
request  be  approved.    He   did   not   recommend   probation   and
rehabilitation in this case.  On 28 May 1985, the  Group  staff  judge
advocate (SJA) recommended approval of the request  as  being  in  the
best interest of the Air Force and all parties involved.

On 7 June 1985, the group commander concurred with the request  for  a
discharge in lieu of trial by court-martial.  On  11  June  1985,  the
Numbered  Air  Force  SJA  found  the  case  legally  sufficient.   He
recommended the applicant be separated with a UOTHC discharge.  On  11
June 1985, the discharge authority approved the request for  discharge
in lieu of trial by court-martial and directed the applicant be issued
a UOTHC discharge.

On 17 June 1985, the applicant was discharged under the provisions  of
AFR 39-10, with service characterized as under  other  than  honorable
conditions.  He served 1 year and 2  months  on  active  duty,  and  5
months and 17 days on inactive duty.

On 3 November 1999, the Air  Force  Discharge  Review  Board  (AFDRB),
reviewed the applicant’s request for upgrade of his  UOTHC  discharge.
The AFDRB found that neither evidence of record, nor that provided  by
the applicant, substantiated an inequity or impropriety,  which  would
justify a change in the discharge (see AFDRB Hearing Record at Exhibit
B).

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

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AIR FORCE EVALUATION:

HQ AFPC/JA, recommended denial based on the lack of relevant  evidence
or injustice.  They concurred with the conclusions of the  AFDRB  that
applicant’s  discharge  was  consistent  with   the   procedural   and
substantive requirements of the discharge regulation, and further that
the discharge action  was  within  the  discretion  of  the  discharge
authority.

They stated that the characterization of service as under  other  than
honorable  conditions  may  be  appropriate  if  the  member  requests
discharge in lieu of court-martial and when the reason for  separation
is  based  on…one  or  more  acts  or  omissions  that  constitute   a
“significant departure” from the conduct  expected  of  airmen.   They
added the applicant’s case was such a “significant departure.”

They further noted that the applicant now points out that his  counsel
and the staff  judge  advocate  both  stated  that  a  conviction  was
unlikely if he had proceeded to  trial,  however,  the  time  to  have
tested the evidence to see if their opinions  were  correct  has  long
passed.  Given the decision made by the applicant at  that  time,  and
the lengthy time interval since his alleged misconduct, no way  exists
to now decide the issues avoided by applicant in 1985.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 26 October 2001, a copy of the Air Force evaluation  was  forwarded
to the applicant for review and comment within 30  days  (Exhibit  E).
As of this date, this office has received no response.

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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  reviewing  the
circumstances surrounding applicant’s separation, we are not persuaded
that the type of discharge he received was either in error or  unjust.
We took notice of the applicant's complete submission in  judging  the
merits of the case; however, we do not find these assertions,  in  and
by themselves, sufficiently persuasive to override the  misconduct  of
the applicant during his military service.  Therefore, we  agree  with
the opinion and recommendation of  AFPC/JA  and  adopt  the  rationale
expressed as the basis for our decision that the applicant has  failed
to sustain his burden of having suffered either an error or injustice.
 Therefore, in the absence of persuasive evidence to the contrary,  we
find no compelling basis to recommend granting the  relief  sought  in
this application.

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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 8 January 2002, under the provisions of  AFI  36-
2603:

      Ms. Peggy E. Gordon, Panel Chair
      Mr. Michael K. Gallogly, Member
      Mr. Steven A. Shaw, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 8 Aug 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation
    Exhibit D.  Letter, HQ AFPC/JA, dated 19 Oct 01.
    Exhibit D.  Letter, AFBCMR, dated 26 Oct 01.




                                   PEGGY E. GORDON
                                   Panel Chair