RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBERS:  02-01252
            INDEX CODE 110.00
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1983 under-other-than-honorable-conditions  (UOTHC)  discharge  be
upgraded to honorable or at least general.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was accused of and discharged for a  crime  not  proven  in  court-
martial. Counsel  misled  him  by  advising  he  definitely  would  be
confined again because of his previous  court-martial.  He  wants  his
record reviewed to see if he qualifies for an honorable or at least  a
general discharge.

The applicant’s complete submission, with attachment, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air  Force  for  four  years  on
4 Jan 80 and was assigned to the 63rd Supply Squadron at  Norton  AFB,
CA as a wing/base fuels mobile refueling  operator.   His  performance
reports reflect overall ratings of 9, 9, and 8.

On 14 Mar 80, the applicant received a letter of reprimand  (LOR)  for
condoning the use and possession of marijuana on 9 Mar 80. The LOR was
filed in his Unfavorable Information File (UIF).

On 16 Apr 81, the applicant received an Article 15 for failing to obey
an order to appear in uniform for counseling and  using  disrespectful
language toward a superior NCO on 7 Apr 81. He was punished with  five
days of extra duty and did not appeal.

He received an LOR on 7 Apr 82 for failing to report  for  duty  on  3
April 82.

On 16 Aug 82, the applicant plead and was found guilty  in  a  special
court-martial of the following: possession and transfer  of  marijuana
to another airman on 22 May 82, use of marijuana  on  22 Jun  82,  and
possession and sale of marijuana to another airman on 1 Jul  82.   The
sentence, which was approved on 14 Oct 82,  was  confinement  at  hard
labor for five months, forfeiture of $325.00 per month for five months
and reduction from airman first class to airman.

On 19 Apr 83, the applicant was charged with raping  a  female  airman
first class in her dorm room on 26 Feb 83. An Article 32 investigative
report dated 10 May 83 reveals  that  the  enlisted  female  allegedly
struggled against the applicant’s sexual advances initially  and  then
grudgingly acquiesced because she  believed  he  would  hurt  her  and
resistance was futile. The female airman was reluctant to testify at a
trial. Although the facts presented during the investigation indicated
a prima facia case for  technical  rape,  the  issue  of  consent  was
clouded. Therefore, the investigating officer recommended the case  be
referred to a special court-martial  with  an  alternative  charge  of
indecent assault.

On 17 May 83, after consulting with counsel, the  applicant  requested
discharge  in  lieu  of  trial  by  court-martial.  He  indicated   he
understood he could be separated with  a  UOTHC  discharge.  His  area
defense counsel recommended his client’s request be granted.

On 31 May 83, the commander recommended  the  applicant  be  separated
with a UOTHC discharge. The case was  found  legally  sufficient.  The
discharge authority approved the applicant’s request for discharge  in
lieu of  court-martial  and  directed  his  separation  with  a  UOTHC
characterization.

The applicant was discharged in lieu of trial by court-martial in  the
grade of airman with a UOTHC characterization on 29 Jun 83. He  had  3
years, 1 month and 29 days of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPRS provided their rationale for recommending denial.

A complete copy of the evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 30 Aug 02 for review and comment within 30 days.   As  of
this date, this office has received no response.

_________________________________________________________________

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  the  applicant’s  submission,  we  are  not
persuaded that his UOTHC discharge should be upgraded to honorable  or
general. The applicant’s contentions are duly noted;  however,  we  do
not find  these  uncorroborated  assertions,  in  and  by  themselves,
sufficiently persuasive to override the rationale provided by the  Air
Force. In this regard, we note the applicant’s significant history  of
misconduct almost from the beginning of his career. Further, he  opted
for discharge in lieu of court-martial; he cannot litigate the charges
against him almost 20 years later after he chose to avoid a  trial  in
1983. He has provided no evidence demonstrating  his  UOTHC  discharge
was unjust. We therefore agree with the  recommendations  of  the  Air
Force and adopt the rationale expressed as the basis for our  decision
that the applicant has not shown he suffered either  an  error  or  an
injustice. In view of the above and absent persuasive evidence to  the
contrary, we find no compelling 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 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 21 November 2002 under the provisions of AFI  36-
2603:

                 Mr. Albert F. Lowas, Jr., Panel Chair
                 Mr. James E. Short, Member
                 Mr. Laurence M. Groner, Member

The following documentary evidence relating to AFBCMR Docket Number 02-
01252 was considered:

   Exhibit A.  DD Form 149, dated 26 Jul 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPRS, dated 16 Aug 02.
   Exhibit D.  Letter, SAF/MRBR, dated 30 Aug 02.




                                   ALBERT F. LOWAS, JR.
                                   Panel Chair