RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER: 01-02861

            COUNSEL:  ROBERT E. BERMAN

            HEARING DESIRED:  YES


_________________________________________________________________

APPLICANT REQUESTS THAT:

1.    Her  under  other  than  honorable  conditions  (UOTHC)  discharge  be
upgraded to honorable, with all  appropriate  benefits  associated  with  an
honorable discharge.

2.    She receive a lump sum payment for 55.5 days of accrued leave.

3.    Any and all references to her UOTHC  discharge  be  removed  from  her
records.

4.    Her records be corrected to  reflect  that  she  did  not  commit  the
charged offenses, as referred to in the Staff Judge Advocate  Review,  dated
12 November 1999.

5.    She be relieved of any financial obligation to pay any interest on  an
interest free loan previously given to her by the Air Force Aid Society.

6.    She be eligible to reenlist in the same rank and  seniority  that  she
would have been in, if she had not been discharged.

7.    She be reinstated in the Air Force, with the same rank  and  seniority
that she would have been in, if she had not been discharged, with  all  back
pay and allowances.

8.    She receive all other relief as is just and appropriate.

_________________________________________________________________

THE APPLICANT CONTENDS THAT:

She was not guilty of the charged offenses (i.e., larceny and  forgery)  and
the charges should have been dismissed because they were  not  supported  by
sufficient evidence.




The applicant states that nowhere in her request for discharge  in  lieu  of
trial does she admit any guilt, but instead asked only that she  be  granted
a discharge because she wanted to be able to leave the service so she  could
take care of her seven year old daughter and not have  to  worry  about  the
possibility of her receiving jail time.  Her request  for  discharge  should
not have been approved due to a lack of sufficient evidence to  convict  and
the charges dismissed.

In support of the appeal, the  applicant  submits  her  personal  affidavit,
extracts from her discharge package, and character statements.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant was discharged on 6 December 1999,  under  the  provisions  of
AFI 36-3208 (Triable by Court-Martial), with her  service  characterized  as
UOTHC.  She completed 11 years and 3 months of total active service.

The remaining 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 at Exhibits C and D.

_________________________________________________________________

AIR FORCE EVALUATIONS:

AFPC/DPPRS recommends the application  be  denied.   AFPC/DPPRS  states,  in
part, that the discharge was consistent with the procedural and  substantive
requirements of the discharge regulation.  Additionally, the  discharge  was
within the sound discretion of the discharge  authority.   Furthermore,  the
applicant was never convicted of her crimes because she requested,  and  was
approved, for the UOTHC discharge in  lieu  of  receiving  a  court-martial.
Additionally,  the  discharge  was  within  the  sound  discretion  of   the
discharge authority.  The applicant did  not  submit  any  new  evidence  or
identify  any  errors  or  injustices  that  occurred   in   the   discharge
processing.  He has provided no other facts warranting  an  upgrade  of  the
discharge.  The applicant did not submit any new evidence  or  identify  any
errors or injustices that occurred in  the  discharge  processing.   He  has
provided no other facts warranting an upgrade of the discharge.

The AFPC/DPPRS evaluation is at Exhibit C.

AFPC/JA recommends the application be  denied.   AFPC/JA  states,  in  part,
that the applicant has not met her burden of proof that  she  has  been  the
victim of an error or injustice.  There  is  no  evidence  from  any  source
suggesting that the charges would have been dropped had  the  applicant  not
requested discharge in lieu of trial.  The evidence  of  her  guilt  clearly
existed, and was strong  enough  to  cause  her  and  her  military  defense
counsel to seek a discharge, even knowing it would be in  all  likelihood  a
UOTHC.  Moreover, it is not reasonable to now  disregard  her  statement  to
her commander that the discharge would punish her for her actions.   If  she
did not perceive that she had done something wrong, why would she have  made
such a statement?  It is not an error or injustice to let the applicant  pay
the unfortunate price of her UOTHC discharge  where  she  has,  at  her  own
request, received the benefit of  not  facing  a  court-martial  on  serious
charges and the potential consequences.  The applicant  had  an  opportunity
to present her case to a court-martial in 1999,  at  which  time  she  could
have called witnesses  and  presented  evidence  and  argument  on  her  own
behalf.  However, after consultation with counsel, she elected to waive  her
right to do so and chose to leave the service, rather than test  the  merits
of the government’s case.  She should not be permitted to use her  voluntary
request on the one had to halt the criminal procedure established by law  as
the proper means to adjudicate the allegation against her, and now,  in  the
guise  of  an  allegation  of  error  or  injustice,  litigate  those   same
allegations of misconduct contrary to  the  very  waiver  accepted  in  good
faith by the Air Force.

The AFPC/JA evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

The applicant states that she  remains  without  fault  and  should  not  be
forced  to  live  forever  with  the  most  adverse  effects  of  her  UOTHC
discharge.  Once the  Staff  Judge  Advocate  (SJA)  learned  that  she  had
actually sent a $200.00 payment to the alleged victim’s  mother,  which  was
contrary to what the alleged victim had stated, and had  paid  for  it  from
the alleged victim’s monies, he immediately stopped  the  trial  proceedings
and immediately accepted the request for discharge.  It was not because  she
was guilty of the charges that she requested the discharge, but to  be  able
to take care of her infant child.   Certainly  the  fact  that  the  alleged
victim had previously permitted her to sign her  name  to  checks  and  have
access to her checkbook, lends  substantial  credibility  to  her  testimony
that she had the alleged victim’s permission for subsequent usage.

The applicant’s complete response, 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 error or injustice.  After a thorough review  of  the  evidence
of record and applicant’s submission,  we  are  not  persuaded  that  relief
should be granted.  In this respect, we note that on 25  October  1999,  the
applicant  requested  discharge  in  lieu   of   trial   by   court-martial,
acknowledged that granting her request would punish  her  for  her  actions,
and that she was aware of the adverse nature and  possible  consequences  of
her UOTHC discharge,  if  approved.   The  contentions  of  the  applicant’s
counsel are duly noted; however, we do not find these assertions, in and  by
themselves, sufficiently persuasive to override the  rationale  provided  by
the Staff Judge Advocate and we agree  with  their  opinion  and  adopt  the
rationale expressed as the basis for our decision  that  the  applicant  has
failed to sustain her burden that she has suffered either  an  error  or  an
injustice.  Hence, we find no compelling basis  to  recommend  granting  the
relief sought.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue(s) involved.  Therefore, the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of 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  Docket  Number  01-02861  in
Executive Session on 2 May 2002, under the provisions of AFI 36-2603:

                  Ms. Patricia J. Zarodkiewicz, Panel Chair
                  Mr. Michael Maglio, Member
                  Mrs. Carolyn J. Watkins, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Sep 01, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 1 Dec 01.
    Exhibit D.  Letter, AFPC/JA, dated 10 Dec 01.
      Exhibit E.  Letter, SAF/MRBR, dated 14 Dec 01.
      Exhibit F.  Letter, Counsel, dated 10 Jan 02, w/atchs.




                                   PATRICIA J. ZARODKIEWICZ
                                   Panel Chair