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AF | BCMR | CY2003 | BC-2002-03903
Original file (BC-2002-03903.doc) Auto-classification: Denied

                            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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