RECORD OF PROCEEDINGS

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-02842

            COUNSEL:  BRIAN J. COYNE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge be  upgraded  to  general  (under  honorable
conditions).
_________________________________________________________________

APPLICANT CONTENDS THAT:

At his court martial, he admitted his misconduct and  he  served  nine
months confinement.  His six-year term of service in the Air Force was
prematurely terminated after only 22  months,  despite  his  excellent
evaluations   as   aerospace   ground   equipment   apprentice.    The
dishonorable discharge, which follows him the rest of his life,  seems
excessive for such an isolated incident.

In support of his appeal, the  applicant’s  counsel  submits  a  legal
brief and a letter of support from applicant’s uncle.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic  on
21 July 1999 for a period of 4 years.  The applicant, then  an  airman
first class assigned  to  the  57th  Equipment  Maintenance  Squadron,
Nellis Air Force Base, Nevada, was tried at a general court-martial on
2 October 2001.  He elected trial  before  a  military  judge  sitting
alone.  The applicant was charged with carnal knowledge,  sodomy,  and
making a false official statement, in violation of Articles 120,  125,
and 107 of the UCMJ.  The carnal knowledge and  sodomy  offenses  were
committed against a 14-year old female civilian.  The  applicant  pled
guilty of all charges.  The military judge found the applicant  guilty
of all charges and sentenced him to be reduced to the grade of E-1, be
confined for 10 months, and to receive a bad conduct discharge.  On  6
November 2001,  the  convening  authority  approved  the  sentence  as
adjudged.

Because the convening authority approved  a  punitive  discharge,  the
case was reviewed by the Air Force Court of Criminal Appeals  (AFCCA).
On 28 February 2002, it  affirmed  the  findings  of  guilty  and  the
sentence.  The applicant did not appeal to the U.S. Court  of  Appeals
for the Armed Forces.  The applicant’s  DD  Form  214  shows  his  bad
conduct discharge was executed on 13 June 2002.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  JAJM states there is  no  legal  basis
for upgrading the applicant’s discharge.  The appropriateness  of  the
applicant’s sentence, within the prescribed limits, is a matter within
the discretion of the  court-martial  and  may  be  mitigated  by  the
convening authority or within  the  course  of  the  appellate  review
process.  The applicant had the assistance of  counsel  in  presenting
extenuating and mitigating matters in their most  favorable  light  to
the court authority.  These matters were considered  in  determination
and review of the sentence.   The  applicant  was  thus  afforded  all
rights granted by statue and regulation.  The  applicant  provides  no
compelling rationale to mitigate the approved punitive discharge given
the circumstances of the case.

Carnal knowledge, sodomy, and  making  false  statements  are  serious
offenses.  As such, a general court-martial was the appropriate forum.
 The maximum punishment authorized for  the  offenses  for  which  the
applicant was convicted was a dishonorable discharge, confinement  for
45 years, forfeiture of all pay and allowances, and reduction to  E-1.
The sentence was well within the legal  limits  and  the  bad  conduct
discharge was an appropriate punishment for  the  offenses  committed.
The findings of guilty and the sentence,  including  the  bad  conduct
discharge, were affirmed upon appellate review.

While clemency is an option, there is  no  reason  for  the  Board  to
exercise  clemency  in  this  case.   The  applicant  did  not   serve
honorably.  The applicant met a 14-year old female on a telephone chat
line.  The applicant  knew  the  female  was  14-years  old.   Despite
warnings  from  the  female’s  mother,  the  applicant  continued   to
communicate with the female.  The applicant  then  engaged  in  carnal
knowledge and sodomy with the female in his room.  When  a  member  of
the Security Forces went to the applicant’s dorm room  and  questioned
him regarding the whereabouts of the female, the  applicant  lied  and
said she was not in the dorm  room.   The  applicant  pled  guilty  to
carnal knowledge, sodomy, and making a false statement.

There are consequences  for  criminal  behavior--the  military  judge,
convening authority, and the  Air  Force  Court  of  Criminal  Appeals
believed a bad conduct discharge was an appropriate  consequence  that
accurately characterized his military  service  and  his  crimes.   It
would be unjust to change that characterized to one that  hundreds  of
thousands of airmen, who have served honorably, also carry.  Moreover,
we find it highly unlikely the applicant cannot obtain a job.  Indeed,
to support his  contention  he  offers  nothing  more  than  his  bare
assertion.

The applicant has provided no evidence of a clear error  or  injustice
related to the sentence.  The applicant presents insufficient evidence
to  warrant  upgrading  the  bad  conduct  discharge,  and  does   not
demonstrate an equitable basis for relief.

AFLS/JAJM complete 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 and counsel on 17 January 2003, for review and comment.   As
of this date, no response has been received by this office.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.    The applicant has exhausted all remedies  provided  by  existing
law or regulations.

2.    The application was timely filed.

3.    Insufficient relevant evidence has been presented to demonstrate
the existence of an error or injustice that would warrant  an  upgrade
of his discharge.  We agree with the opinion and recommendation of the
Air Force office of primary responsibility and adopt  their  rationale
as the basis for our conclusion that he has not been the victim of  an
error or injustice.  Evidence has not been provided which  would  lead
us to believe that the action taken to affect his discharge  from  the
Air Force was improper or contrary to the provisions of the  governing
regulations at the time; or, that the characterization of his  service
was based on factors other than his own misconduct.  Therefore,  based
on the available evidence of record, we find no compelling basis  upon
which to recommend granting the relief sought in 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 a 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  02-02842
in Executive Session on 25 March 2003, under the provisions of AFI 36-
2603:

                 Mr. Robert S. Boyd, Panel Chair
                 Ms. Ann-Cecile McDermott, Jr., Member
                 Mr. James A. Wolffe, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 1 Oct 02, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFLSA/JAJM, 24 Dec 02.
      Exhibit D. Letter, SAF/MRBR, dated 17 Jan 03.





      ROBERT S. BOYD
      Panel Chair