RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  02-01447
            INDEX CODE:  110.00
      .     COUNSEL:  NONE

            HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

a.  His dishonorable discharge be upgraded to general.

b.  His be restored to the grade of staff sergeant.

c.  He receive back pay for the period he was in a non-pay status.

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APPLICANT CONTENDS THAT:

He was ordered by his commander to call his daughter.  The  purpose  of  the
call was to solicit incriminating statements  from  him  by  the  Office  of
Special Investigations (OSI) using  his  daughter  as  the  "mouthpiece"  to
perform an interrogation with the use of flash cards.    He was not  advised
of his rights in this matter, in violation of Article 31  of  the  Uniformed
Code of Military Justice (UCMJ).  Further, he was compelled  by  a  superior
officer to participate  in  the  interrogation,  under  those  circumstances
Article 31 warnings were required.

During his  trial  the  government  used  his  responses  to  his  daughters
questions against him  even  though  he  did  not  confess  to  the  charged
offenses during the interrogation.  In  the  absence  of  a  confession  the
government sought to prove his guilt by  citing  his  failure  to  deny  the
accusations.  Additionally, his Sixth Amendment right to confront  witnesses
against him was violated when the Judge admitted  an  excerpt  of  a  report
which described a conversation with him where neither the declarant nor  the
records custodian  testified  at  trial;  and,  the  report  was  unreliable
because the declarant's original report of the conversation did not  contain
his  alleged  statement.   Lastly,  his  commanding  officer  made  a  false
statement by testifying that he was "an average to  slightly  below  average
performer" since he was the only enlisted member  of  the  squadron  with  a
private pilot's license and a FAA Flight Engineer Certificate, and he was  a
Distinguished Graduate from both Flight Engineer School  and  C-141  Initial
Qualification School.

In  support  of  his  request,  applicant  provided  a  personal  statement,
documentation associated with his court-martial, a printout of  Article  31,
a copy of a previous court decision, a copy of Silence is Golden, a copy  of
his FAA  Flight  Engineer  Certificate,  and  copies  of  his  Distinguished
Graduate certificates.  His complete submission,  with  attachments,  is  at
Exhibit A.

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STATEMENT OF FACTS:

After serving 4 years and 1 month in the United States Navy,  he  contracted
his initial enlistment in the Regular  Air  Force  on  22 Feb  82.   He  was
progressively promoted to the grade of staff sergeant, having  assumed  that
grade effective and with a date of rank of 1 Mar 86.

In July 1995, the applicant was tried by a general  court-martial.   He  was
charged with and found guilty of rape of  a  female  under  the  age  of  16
years, committing sodomy with a female under the age of 16  years  by  force
and without her consent, and unlawfully striking and grabbing a child  under
the age of 16 years on her waist and legs with a belt and on  her  arms  and
around the neck with his hands.  Sentence  adjudged  on  20  Jul  95  was  a
dishonorable discharge, confinement for  18  years,  and  reduction  to  the
grade of airman basic.  On 26 Mar 99, he was discharged from the  Air  Force
with service characterized as dishonorable.  He served 20 years, 11  months,
and 17 days on active duty.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial.  JAJM  states
that the applicant has unsuccessfully argued these same  allegations  before
the Air Force Court of Criminal Appeals and the U.S. Court  of  Appeals  for
the Armed Forces.  The U.S. Supreme Court declined to hear his appeal and  a
subsequent application for habeas corpus was  dismissed  in  federal  court.
Under 10  United  States  Code,  Section  1552(f),  the  AFBCMR  is  without
authority to reverse,  set  aside,  or  otherwise  expunge  a  court-martial
conviction which occurred on or after 5 May 90.

The  sentence  was  well  within  the  legal  limits  and  the  dishonorable
discharge was an appropriate punishment for the offenses  committed.   While
clemency is an option, there is no  reason  to  exercise  clemency  in  this
case.   The  applicant  did  not  serve  honorably.   He  raped,  sodomized,
battered and committed indecent acts upon his minor daughter.  It  would  be
unjust to change the characterization to one that thousands of  airmen,  who
have served honorable, also carry.  The applicant has provided  no  evidence
of a clear error or injustice related to the sentence.

The JAJM evaluation is at Exhibit C.

AFPC/DPPPWB reviewed applicant's request, concurs with the JAJM  evaluation,
and recommends denial.  The DPPPWB advisory is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  16
Aug 02 for review and comment within 30 days.  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 error or injustice.  We  are  not  persuaded  by  the  evidence
provided, that the  actions  taken  against  the  applicant  were  improper,
contrary to the provisions of the governing  regulations,  or  that  he  was
denied rights to which he was entitled.  The comments of the Office  of  the
Judge Advocate General are supported by the evidence of record.  We find  no
evidence  of  error  in  this  case  and  after  thoroughly  reviewing   the
documentation that has been submitted in support of applicant's  appeal,  we
do not believe he has suffered from an injustice.  Therefore, based  on  the
available evidence of record, we find  no  basis  upon  which  to  favorably
consider this application.

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 issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

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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.

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The following members of the Board  considered  Docket  Number  02-01447  in
Executive Session on 19 Sep 02, under the provisions of AFI 36-2603:

      Mr. Edward C. Koenig III, Panel Chair
      Mr. John E. Pettit, Member
      Mr. Grover L. Dunn, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Apr 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 24 Jul 02.
    Exhibit D.  Letter, AFPC/DPPPWB, dated 9 Aug 02.
    Exhibit E.  Letter, SAF/MRBR, dated 16 Aug 02.




                                   EDWARD C. KOENIG III
                                   Panel Chair