RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-00882

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He would like to start off by saying that there is no possible  way  he  can
ever go back and undo his crimes.  All he can do is say  that  he  is  sorry
from the bottom of his heart, get forgiveness from God, and learn  from  his
crimes so he does not do them again and maybe down the road be able to  help
someone else.

Each day of his life, he looks at what type of a person he was  during  that
point in his life.  He was a young, stupid, and selfish person  who  had  no
regard for anyone or anything. All he was worried about was himself and  his
feelings.  In his opinion, he probably does not  ever  deserve  getting  his
discharge upgraded.  He feels this way because his service during that  time
was dishonorable and even he will always view it  that  way.   But  then  he
asks himself this question, which he now reflects toward you.  If  a  person
has genuinely changed, is genuinely sorry for his  crimes,  is  serving  his
nation by helping others, just like himself, through the help  of  God,  and
has become a normal  and  law  abiding  citizen,  would  this  constitute  a
consideration for upgrading his discharge?  He sincerely  hopes  the  answer
is yes.  If not, then he must accept that there is nothing else  he  can  do
except for what he is doing now.

The above question he reflected to the Board above applies to  him.   He  is
genuinely sorry for his crimes.  He is a totally different person.   He  was
saved and baptized into  a  local  church  back  home,  shortly  before  his
confinement.  He attended several self-help classes while confined, such  as
the victim empathy program as well as many  others.   He  also  successfully
completed his period of parole in which  he  was  also  enrolled  in  a  sex
offenders treatment program.  He is now married and has two small  children.
 He has a home of his own and a good job.  In July 2000, he surrendered  the
call into the ministry.  His primary ministry is to work with  prisoners  in
confinement to show them how crime is the wrong type of  life,  how  he  was
affected, how God helped him, how God still help him, and how he  will  help
them if they let him.  There  has  been  tremendous  success  with  over  20
people being saved.  He currently visits one prison, but was  visiting  two.
In the near future, he hopes to again visit two prisons.  He does this as  a
service to God, to himself, and to his country by trying to deter  crime  by
engaging in this ministry.  He does not do this to gain  recognition  or  to
try and get his discharge upgraded.  Even if his request is denied, he  will
still be active in this ministry.

In  conclusion,  he  would  respectfully  request  an   upgrade   from   his
dishonorable discharge.  God has forgiven him, he has forgiven himself,  and
he hopes this Board and  the  Air  Force  can  too.   Enclosed  are  several
documents, which  support  his  request  and  confirm  information  in  this
request.  Thank you very much for your time and consideration.

In support of his  request,  applicant  provided  a  personal  statement,  a
letter from SAF/MRBR, a copy of DD  Form  214,  a  copy  of  Certificate  of
Parole, a letter from SAF Personnel Council, a Certificate of  Release  from
Parole, letters of  support  from  his  social  worker,  probation  officer,
friends and family members and  an  order  from  the  Governor  of  Kentucky
restoring the civil rights lost by reason of conviction of a felony.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant  enlisted  in  the  Regular  Air  Force  on  6  Jun  94  and   was
progressively promoted to the grade of airman.

On 14  May  1996,  he  was  tried  by  a  general  court-martial  for  three
specifications of indecent assault, in violation of Article 134,  UCMJ;  and
one specification of dereliction of duty, in violation of Article 92,  UCMJ.
 The applicant was accused of touching or penetrating the  vaginal  area  of
three female patients with the intent to gratify his sexual desires, and  of
performing examinations without a chaperone  present.   The  applicant  pled
guilty  to  the  indecent  assault  specifications,  and   not   guilty   to
dereliction of duty.

The applicant entered into pretrial agreement with the convening  authority.
 The applicant offered, among other things, to plead guilty to the  indecent
assault specifications and request to be tried by military judge alone.   In
exchange, the convening authority agreed  to  withdraw  the  dereliction  of
duty charge and approve no more than 36 months confinement.

The applicant chose to be tried by  military  judge  alone,  who  found  him
guilty in accordance with his pleas.   Upon  the  government’s  motion,  the
military  judge  ordered  the  dereliction  of  duty  charge  withdrawn  and
dismissed.  The military judge sentenced the applicant to be reduced  to  E-
1, be confined for  54  months,  and  to  be  dishonorably  discharged.   In
accordance with the pretrial agreement,  on  2  August  1996  the  convening
authority reduced the confinement to 36 months, but otherwise  approved  the
sentence as adjudged.

Because his approved sentence included a dishonorable discharge, the  United
States  Air  Force  Court  of  Criminal  Appeals  reviewed  the  applicant’s
convictions.  On 2 July 1997, it affirmed the findings  of  guilty  and  the
sentence.  The applicant appealed to the United States Court of Appeals  for
the  Armed  Forces.   On     12  March  1998,  the  Court  ordered   certain
forfeitures of pay  returned  to  the  applicant,  but  affirmed  the  lower
court’s decision.  The applicant was dishonorable discharged  on  12  August
1998.  He served two years, one months, and 15 days on active duty.

_________________________________________________________________

AIR FORCE EVALUATION:

ALSA/JAJM recommends denial and states  that  the  applicant  must  file  an
application within three years after the error or injustice was  discovered,
or, with due diligence, should have been  discovered.   An  application  not
timely filed may be denied on that basis, although the untimely  filing  may
be excused in  the  interest  of  justice.   The  application  is  dated  14
February 2003, over six years after his conviction and four years  after  he
was discharged.  As justification for the  untimely  filing,  the  applicant
explains he appealed to the Commandant of the U.S. Disciplinary Barracks  in
1999 and also to the Secretary of the Air Force.  The fact that  an  accused
does not  know  to  appeal  to  the  AFBCMR  does  not  excuse  an  untimely
application.  The application should be denied on that basis.

There  is  no  legal  basis  for  upgrading  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 and the convening authority.  These matters were considered in  review
of the sentence.  The applicant was thus  afforded  all  rights  granted  by
statue and regulation.  In this case, the convening  authority  reduced  the
applicant’s sentence to confinement.  The applicant provides  no  compelling
rationale  to  mitigate  the  approved  dishonorable  discharge  given   the
circumstances of the case.

While clemency is an option, there is no reason for the  Board  to  exercise
clemency in this case.  The applicant’s  service  was  dishonorable.   There
are consequences for criminal  behavior  –  the  military  judge,  convening
authority and the appellate court  believes  a  dishonorable  discharge  was
appropriate consequence that accurately characterized his  military  service
and his crimes.  Even the applicant agrees.  The  materials  in  support  of
the applicant are not persuasive.  The process  is  commonplace.   In  fact,
beginning in 2001 prisoners  in  Kentucky  were  required  to  fill  out  an
application after completion of their sentences.

The applicant presented many of the same arguments to the  court-martial  as
in his application.  His father testified about the good Christian  home  in
which the applicant was raised.  He also talked about the influence  of  the
applicant’s grandfather, who was in the military.  The  applicant  presented
evidence that he had  recently  been  baptized.   In  total,  the  applicant
presented 40 documents evidencing good conduct and  achievements,  including
21 character statements.  The military judge  considered  all  the  evidence
and  determined  a  dishonorable  discharge,  54  months   confinement   and
reduction to E-1 fit the applicant and his crimes.  The  sentence  was  well
within the legal limits and was an appropriate punishment for  the  offenses
committed.

The applicant has identified no error or injustice related to the  sentence.
 His later good conduct  does  not  justify  criminal  behavior  during  his
enlistment, which appropriately ended with a  dishonorable  discharge.   The
applicant  presents  insufficient  evidence   to   warrant   upgrading   the
dishonorable discharge, and does not  demonstrate  an  equitable  basis  for
relief.  In addition, his request, made more  than  three  years  after  his
conviction and discharge is untimely.

ALSA/JAJM complete evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the Air Force evaluation and  stated  that  he  feels
like the Advisory Board just simply denied him without even looking  at  the
whole package.  He believes before someone can make a  fair  decision,  they
should look at the present as well  as  the  past.   Like  he  said  in  his
package, he knows he did wrong and his service was dishonorable during  that
time.  But he would like for the Board to look at it like  this.   If  every
time the Board did something wrong, no matter how big or  small,  would  the
Board want someone to not give the Board a second chance.  Would  the  Board
want to suffer the rest of the their life for it?   He  feels  that  he  has
done all he can do to make himself a better  and  more  productive  citizen.
He hopes the Board can see what progress he has made and he also hopes  that
it can prove that he deserves an upgrade of his dishonorable discharge.   He
does not care what it is upgraded to; he feels that decision would  best  be
decided by the Board.  He knows he cannot go  back  in  time  and  undo  the
wrong he has done, he hopes the Board understands this too.  All he  can  do
is move forward and learn from his mistakes.  He prays that God  will  guide
the Board in making the decision the Board feels is right.   He  would  like
to offer this in closing noting that he is not  trying  to  be  arrogant  or
funny, but it is the truth.  He has  gone  six  years  with  a  dishonorable
discharge.  He would love to have it upgraded, but if for  some  reason  the
Board cannot, he would like for everyone to know that he does  not  have  to
have a piece of paper to tell him whether or not  he  has  honor.   This  is
solely decided by God and by his loved ones and friends.

In addition, the applicant’s wife also  provided  a  personal  statement  of
support for the Board to consider.

Applicant’s complete response, with attachment is at Exhibit E.

_________________________________________________________________

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  took  notice  of  the  applicant's
complete submission in judging the  merits  of  the  case.   However,  after
thorough review of the evidence of  record,  it  is  our  opinion  that  the
comments of the office of the Judge Advocate General are  supported  by  the
evidence of record.  We find no evidence of error in  this  case  and  after
thoroughly reviewing the applicant's submission, we do not  believe  he  has
suffered from an injustice.  We considered upgrading his  discharge  on  the
basis of clemency; however, due  to  the  serious  nature  of  the  offenses
committed, in the short period of time in which he served, we  believe  that
the characterization of his discharge was proper and in compliance with  the
appropriate directives.  In  the  absence  of  persuasive  evidence  to  the
contrary,  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  Docket  Number  BC-2003-00882
in Executive Session on 29 July 2003, under the provisions of AFI 36-2603:

                       Ms. Olga M. Crerar, Panel Chair
                       Mr. Vaughn E. Schlunz, Member
                       Mr. John L. Robuck, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 172 may 03.
    Exhibit D.  Letter, SAF/MRBR, dated 30 May 03.
      Exhibit E.  Applicant’s Response, dated 6 Jun 03




                                   OLGA M. CRERAR
                                   Panel Chair