RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 02-03903
INDEX CODE: 110.02
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His under other than honorable conditions (UOTHC) discharge be upgraded to
general (under honorable conditions).
_________________________________________________________________
APPLICANT CONTENDS THAT:
His discharge was not consumate (sic) with his military record.
Applicant's complete submission is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 13 Jul 77, the applicant enlisted in the Regular Air Force for a period
of four years. He served on continuous active duty and entered his last
enlistment on 24 Dec 84. Prior to the events under review, he was promoted
to the grade of staff sergeant (SSgt/E-5) with an effective date and date
of rank (DOR) of 1 Jul 81.
Applicant’s last five airman performance reports (APRs) reflect overall
ratings of “9.”
On 9 September 1985, court-martial charges were preferred against the
applicant for two specifications of forcible sodomy in violation of Article
125, one specification of assault in violation of Article 128, and one
specification of an indecent act with another in violation of Article 134,
in that, on or about 11 July 1985, he committed sodomy with his military
spouse by force and without her consent, unlawfully struck his military
spouse in the face and shoulder area with his fists, banged her head
against the floor and choked her around the neck with his hands.
On 15 October 1985, after consulting with counsel and having been advised
of his rights, applicant requested discharge in lieu of trial by court-
martial in accordance with AFR 39-10, chapter 4. In his request he
acknowledged his understanding that he could receive a UOTHC discharge,
regardless of the recommendation, and that he was aware of the adverse
nature of such a discharge, the possible consequences, and that it could
deprive him of veterans’ benefits.
The squadron commander recommended the applicant’s request be approved and
that he be furnished an honorable discharge. He stated that based on the
seriousness of the charges, he did not feel that the applicant should
remain in the Air Force. He did not counsel the applicant because the
acts, in this matter were normally spontaneous reactions to great stress or
emotion. Regardless of the reasons, his acts were criminal in nature and
should result in his discharge. On 25 October 1985, the Group staff judge
advocate (SJA) found the case legally sufficient for discharge and
recommended approval of the request with an under other than honorable
conditions discharge.
On 28 October 1985, the group commander recommended approval of the request
for a discharge in lieu of trial by court-martial with a UOTHC discharge.
On 14 November 1985, the Numbered Air Force SJA found the case legally
sufficient. He recommended the applicant be separated with a UOTHC
discharge. On 15 November 1985, the discharge authority approved the
request for discharge and directed the applicant be issued a UOTHC
discharge.
On 27 November 1985, the applicant was discharged under the provisions of
AFR 39-10, with service characterized as under other than honorable
conditions. He served 8 years, 4 months and 15 days on active duty.
_________________________________________________________________
AIR FORCE EVALUATION:
HQ AFPC/DPPRS found that the discharge was consistent with the procedural
and substantive requirements of the discharge regulation. Additionally,
that the discharge was within the sound discretion of the discharge
authority. They also noted that the applicant did not submit any new
evidence or identify any errors or injustices that occurred in the
discharge processing nor did he provide any facts warranting an upgrade of
his discharge. Accordingly, they recommended his records remain the same
and his request be denied.
A complete copy of the 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 14
February 2003, for review and response. As of this date, no response has
been received by this office (Exhibit D).
_________________________________________________________________
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 careful review of the facts
surrounding the applicant’s separation, the discharge appears to be in
compliance with the governing regulation and we find no evidence to
indicate that his separation from the Air Force was inappropriate. 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.
_________________________________________________________________
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-
03903 in Executive Session on 21 May 2003, under the provisions of AFI 36-
2603:
Mr. Thomas J. Topolski Jr., Panel Chair
Ms. Marilyn Thomas, Member
Ms. Ann-Cecile McDermott, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 10 Jan 03, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFPC/DPPRS, dated 29 Jan 03.
Exhibit D. Letter, SAF/MRBR, dated 14 Feb 03.
THOMAS J. TOPOLSKI JR.
Panel Chair
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