RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-03632
            INDEX CODE:  136.00
            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His dishonorable discharge be reviewed and  his  retirement  eligibility  be
restored so that he may retire from the Air Force.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His dishonorable discharge belies a  lifetime  of  dedicated  and  honorable
service for 23-1/2 years.   All  of  his  performance  reports  were  either
excellent or outstanding.  He never stopped doing his best and  worked  hard
all the way up to his court-martial.  While he  was  confined  at  the  Navy
Consolidated Brig at Miramar MCAS, he was on a  detail  where  an  untrained
and unqualified civilian driver backed into him  with  a  3-ton  truck.   He
sustained a crushed pelvis, fractured right hip,  and  his  spine  and  ribs
were bruised.  His internal injuries included damage to his colon and  lower
intestines requiring a resection and colostomy  bag.   He  was  hospitalized
for eight weeks  and  confined  to  a  wheelchair  for  twenty  weeks.   The
continuous pain and physical limitations he suffers preclude him  from  full
time employment.

He was promised that with hard work and completion of the required  classes,
he would be a better person when released.  He was a model inmate.   He  did
everything that was asked of  him,  including  completion  of  Sex  Offender
Orientation and Victim Impact to Life Skills and Anger Management  training.
 Instead of being released a better person, he exited a broken and  crippled
man.  The Department of Veterans' Affairs (DVA) has rejected his claims  for
medical care and disability resulting  from  the  accident  because  he  was
dishonorably  discharged,  with  his  last  period  of   honorable   service
beginning 24 Jan 91, which was the date of his  last  enlistment.   He  will
not be able to afford the needed hip replacement  or  other  pain  relieving
medical care.  He is unable  to  work  and  must  depend  on  his  wife  and
relatives for support.  Pride and belief in doing the right thing  has  kept
him from applying for welfare.  He has cancelled  medical  appointments  and
skipped  medication  because  he  just  cannot  afford  to  pay  for   them.
Retirement will give him a small income and medical coverage that he  cannot
now afford.  Even though he was in confinement, the accident was the  result
of the inappropriate actions of a military  civilian  employee  working  for
the  military,  on  a  military  installation,  while  performing   assigned
military duties.  The military is responsible for his accident, his  medical
care, and the disability resulting from the accident.

In support of his request, applicant  provided  a  personal  statement,  his
personnel data sheet, character references, his Enlisted Performance  Report
closing 30 Apr 97, and documentation  associated  with  his  accident.   His
complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Regular Air Force  on  28
Jan 74.  He was progressively promoted to  the  grade  of  master  sergeant,
having assumed that grade effective and with a date of rank of 1 Dec 89.

In July  1997,  applicant  was  tried  by  general  court  martial  for  six
specifications of violations  of  federal  law  pertaining  to  mailing  and
distributing  obscene  material,  and  possessing  and  distributing   child
pornography.  He plead guilty and was found guilty  of  all  specifications.
His sentence, adjudged on 26 Aug 97, was a dishonorable  discharge,  a  fine
of $10,000.00, confinement for 54 months, and reduction to the grade  or  E-
1.  However, only so much of the sentence that provided for  a  dishonorable
discharge, confinement for 36 months, reduction to the grade of  E-1,  total
forfeiture of all pay  and  allowances  except  for  a  $900.00  involuntary
allotment to be sent to his wife, and a $10,000.00  fine  was  approved  and
executed.  The applicant was discharged on 18 Apr 01.  He served  26  years,
1 month, and 23 days on active duty.

In September 1999, the United States Court of Criminal Appeals reviewed  his
convictions and affirmed the findings and sentence.  The applicant  appealed
to the United States Court of Appeals for the Armed Forces.  On 14  Feb  00,
the Court of Appeals for the Armed Forces denied his  petition  for  review.
While incarcerated, the Air Force Clemency  and  Parole  Board  paroled  the
applicant  on  11  Sep  98.    Parole   was   contingent   on   satisfactory
participation and progress in  a  community  based  sex  offender  treatment
program, unsupervised contact with minors was not permitted, and he  was  to
abstain from the use and possession of pornographic or sexually  stimulating
materials and alcohol.   The  parole  decision  was  reconsidered  following
investigation into the possible use or possession  of  pornographic/sexually
stimulating materials, use of or access to a computer  and/or  the  internet
without prior approval  of  the  probation  officer,  and  failure  to  make
satisfactory progress in sex offender treatment.  A subsequent  request  for
parole was considered and denied on 3 Feb 00.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states  that  the  applicant  previously
applied for upgrade of his discharge based on  medical  reasons  and  renews
his application based on 23-1/2 years of loyal and faithful service and  the
serious  disabling  injuries  he  received  while   in   confinement.    The
applicant, his  defense  counsel,  and  the  government  signed  a  14  page
Stipulation of Facts as a true account of  the  events,  which  led  to  the
court-martial.  He was tried by the  appropriate  forum,  a  general  court-
martial.   The  maximum  punishment  authorized  for  the  offenses  was   a
dishonorable discharge, confinement for 50 years, forfeiture of all pay  and
allowances, and reduction to airman basic.  The  sentence  was  well  within
the legal limits and was appropriate punishment for the offenses  committed.
 There is no legal basis for upgrading his discharge.  The  applicant  bases
his present argument  on  his  prior  excellent  service  to  the  military.
During the court-martial  process,  the  applicant  had  the  assistance  of
counsel.   He  offered  mitigating  circumstances  in  his  defense.   These
matters were considered in determination of and review of the sentence.   He
was thus  afforded  all  rights  granted  by  statute  and  regulation.   He
provides no compelling  rationale  to  mitigate  the  approved  dishonorable
discharge.  While clemency is an option, there  is  no  reason  to  exercise
clemency.  He did not serve his  enlistment  honorably.   The  tone  of  his
application suggests that, to this day, he has not comprehended the  gravity
of his actions.  He has identified no error  or  injustice  related  to  his
prosecution or the sentence and presents insufficient  evidence  to  warrant
upgrading the dishonorable discharge.  The JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on  8  Aug
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 timely filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.   We  carefully  reviewed  the  applicant's
complete  submission  in  judging  the  merits  of   the   case.    However,
insufficient evidence has been presented which  would  lead  us  to  believe
that correction of his military record in a manner that would allow  him  to
retire from the Air Force is warranted.  We find no evidence of an error  in
this case and while we are not unsympathetic towards the applicant,  we  are
not persuaded by  his  contentions  that  he  has  been  the  victim  of  an
injustice.  Therefore, we agree with the opinion and recommendation  of  the
Office of the Judge Advocate General and adopt their rationale as basis  for
our conclusion that he has not been the victim of  an  error  or  injustice.
In the absence of evidence to the contrary, we find no compelling  basis  to
recommend granting the relief sought in this application.

_________________________________________________________________

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-
03632 in Executive Session on 17 Sep 03, under the  provisions  of  AFI  36-
2603:

      Mr. Albert F. Lowas, Jr., Panel Chair
      Mr. Michael J. Maglio, Member
      Ms. Dorothy P. Loeb, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, not dated, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 8 Aug 03.




                                   ALBERT F. LOWAS, JR.
                                   Panel Chair