RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02837
            INDEX CODE:  105.01, 133.01
            COUNSEL:  NONE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His dishonorable discharge be upgraded to honorable.

2.  His records be corrected to reflect that he retired from the  Air  Force
in the grade of master sergeant.
_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharged was based on one incident during his military career and  his
23  years  of  honorable  service  were  ignored.   He   had   no   previous
disciplinary actions and was the recipient of numerous  medals  and  awards.
His former spouse made several false allegations against him and  created  a
perception that  something  happened  that  did  not  occur  and  his  son's
testimony during his trial was not credible.  His defense counsel's  failure
to call upon requested witnesses who had first-hand knowledge of his  wife's
vicious nature allowed the panel to believe that the allegations were  true.
 The court instructions provided by the  judge  on  the  types  of  punitive
discharges and their  results  allowed  the  panel  to  believe  that  prior
service was not affected.  The decision of the  military  court  would  have
resulted in only a probationary sentence from a civilian court, had it  been
worthy of a trial.  His  discharge  was  based  on  less  than  satisfactory
performance reports that were rendered during the last part of  his  career.
His post-discharge  conduct  does  not  portray  a  person  deserving  of  a
dishonorable discharge.

In support of his request, applicant provided a personal  statement,  copies
of  his  Honorable  Discharge  certificates,  several  witness   statements,
numerous affidavits, medical statements,  extracts  from  his  court-martial
proceedings, documentation associated  with  his  divorce  proceedings,  his
Enlisted Performance Reports (EPRs) rendered between the period  30  Mar  89
and 30 Jun 92, a copy of his Air Force  Achievement  Medal,  numerous  award
certificates, and documentation associated  with  a  Congressional  inquiry.
His complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant contracted his initial enlistment in the Regular Air Force  on
16 Apr 79.  He was progressively promoted to the grade of  master  sergeant,
having assumed that grade effective and with a date of rank of 1 Feb 87.

On 20 May 92, applicant was tried by general court for  a  specification  of
committing oral sodomy on divers occasions with a child under the age of  16
years, a specification of committing an indecent act  upon  the  body  of  a
male under  16  years  of  age,  and  a  specification  of  taking  indecent
liberties with a male under 16 years of age on divers occasions.   He  plead
not guilty and was  found  guilty  of  all  specifications.   His  sentence,
adjudged on 21 May 92, was  a  dishonorable  discharge,  confinement  for  5
years, and reduction  to  the  grade  of  airman  basic.  His  sentence  was
approved by the convening authority on 18 Sep 92.  On 23  Nov  94,  the  Air
Force Court of Criminal Appeals affirmed the  findings  of  guilty  and  the
sentence.  On 29 Jun 95, the United States Court of Appeals  for  the  Armed
Forced denied his petition for review.

On 29 Jan 93, the applicant submitted s request for retirement  in  lieu  of
dishonorable discharge.  His request was considered as a  dual  action  case
to the Secretary of the Air Force Personnel Council (SAFPC).  On 21 May  93,
SAFPC denied his request for retirement.  The applicant  was  discharged  on
29 Sep 95.  He served 23 years, 5 months, and 18 days on active duty.

The following is a resume of  the  applicant's  performance  report  history
prior to his court-martial action:

      PERIOD ENDING    PROMOTION RECOMMENDATION

EPRs
            30 Jun 91                   2 - Referral Report
            02 Dec 90                   5
            02 Dec 89                   3

Airman Performance Reports (APRs)
            29 Mar 89                   8
            01 Jan 86 thru 05 Jun 88 (5 APRs)            9
            06 May 85                   8
            26 Jan 78 thru 01 Aug 84 (11 APRs)           9
            26 Jan 77 and 26 Jan 76                      8
            26 Jan 75                   7
      16 Apr 73 and 26 Jan 74                      9
      15 Mar 72 and 08 Nov 72                      7
            27 Jul 71                   8
      31 Jan 70 thru 12 Dec 70 (3 APRs)            5

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed applicant's request and recommends denial on  the  basis
of untimliness.  JAJM states that evidence at trial showed that on  numerous
occasions the applicant showed his  14-year  old  son  a  videotape  of  the
applicant and his wife engaged in sexual intercourse.   During  this  video,
the applicant told his son  to  masturbate  and  perform  oral  sex  on  the
applicant.  His son told his mother and when confronted, the applicant  told
his wife and daughter "I must have been out of my  mind  during  the  time".
Sodomy and indecent acts with a male under  16  years  of  age  are  serious
offenses.  A general court-martial was the appropriate forum.  The  sentence
was well within the legal limits  and  the  dishonorable  discharge  was  an
appropriate punishment for the offenses committed.  The Air Force  Court  of
Criminal Appeals considered nine allegations of error regarding  the  court-
martial process.  The Court determined that the applicant was provided  with
effective counsel.  The Court considered  the  factual  sufficiency  of  the
evidence against the applicant and was  convinced  of  his  guilt  beyond  a
reasonable  doubt.   His  recent  concern  regarding  the  military  judge's
instruction should have been raised during the court-martial or  on  appeal;
because it was not addressed, it was effectively waived  by  the  applicant.
Moreover, he has provided no evidence that the instruction was in error.

The applicant contends a civilian court would have adjudged  a  probationary
sentence.  He provides a letter wherein a New Mexico  attorney  opines  that
the applicant "received a potentially harsher sentence"  from  the  military
than a state court in New Mexico would have adjudged.  However,  New  Mexico
repealed its sodomy laws  in  1975.   Therefore,  he  would  not  have  been
convicted in New Mexico of this offense.  The applicant submits no  evidence
that a civilian court  would  have  adjudged  only  probation  for  multiple
indecent liberties and acts with a 14-year old boy.  The  handling  of  each
person's  case  is  tailored  to  that  individual  and  to  the  facts  and
circumstances of the case.

His argument that his dishonorable discharge was  based  on  his  less  than
satisfactory EPRs has no merit.  In fact,  the  government  is  required  to
introduce an accused's performance reports in  the  presenting  phase  of  a
court-martial.  The court members  considered  his  performance  reports  in
addition to all other evidence introduced.  It is  likely  they  adjudged  a
dishonorable discharge primarily because of his  repeated  sexual  abuse  of
his son, not a substandard performance report.

There is no legal basis for upgrading his discharge.  He  was  afforded  all
rights granted by statute and regulation,  and  he  provides  no  compelling
rationale  to  mitigate  the   approved   punitive   discharge   given   the
circumstances of the case.  While clemency is an option, there is no  reason
to exercise clemency in this case.  The applicant did not  serve  honorably.
His  recent  good  conduct  does  not  erase  his  misconduct  in  his  last
enlistment.  He provided no evidence of an error or injustice and  it  would
be unjust to change his characterization to one that hundreds  of  thousands
of airmen, who have served honorably, also carry.  The  JAJM  evaluation  is
at Exhibit C.

AFPC/DPPRS recommends denial.  DPPRS states that in accordance with AFI  36-
3203, Table 2.2, he was restricted from applying for retirement  because  he
was  under  court-martial  sentence,  including  dishonorable  discharge  of
confinement for over 6 months.  The applicant was afforded  the  opportunity
to request for retirement in lieu of dishonorable  discharge  upon  approval
of his sentence because he had reached 20  years  of  total  active  federal
military service.  The discharge was  consistent  with  the  procedural  and
substantive requirements of the discharge  regulation  and  was  within  the
discretion of the discharge authority.  He did not submit any  new  evidence
or identify  any  errors  or  injustices  that  occurred  in  the  discharge
processing.  The DPPRS evaluation is at Exhibit D.

AFPC/DPPRRP recommends denial.  DPPRRP states that there were no  injustices
or irregularities that occurred in the dual action, retirement  in  lieu  of
dishonorable discharge, processing.  His case was reviewed by the Air  Force
Court of Criminal Appeals and it affirmed the findings  of  guilty  and  the
sentence.  The United States Court of Appeals for the  Armed  Forced  denied
his petition for review.  The DPPRRP evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the  applicant  on  11
Apr 03 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.  We  are  not  persuaded  by  the  evidence
provided in support of  his  appeal  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  and  the  Air  Force
offices of primary responsibility are supported by the evidence  of  record,
and the applicant has provided no evidence which would lead  us  to  believe
otherwise.  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.

_________________________________________________________________

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 AFBCMR Docket Number  BC-2002-
02837 in Executive Session on 21 Aug 03, under the  provisions  of  AFI  36-
2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. Brenda L. Romine, Member
      Mr. Roscoe Hinton, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Sep 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 9 Jan 03.
    Exhibit D.  Letter, AFPC/DPPRS, dated 18 Mar 03.
    Exhibit E.  Letter, AFPC/DPPRRP, dated 3 Apr 03, w/atchs.
    Exhibit F.  Letter, SAF/MRBR, dated 11 Apr 03.




                                   RICHARD A. PETERSON
                                   Panel Chair