RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-01216
                       INDEX CODE:  115.02
      XXXXXXXXXXXXXXXXXXX    COUNSEL:  GARY R. MYERS

      XXXXXXXXXXXXXXX  HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated to active duty in the grade of technical sergeant; he
be awarded all back pay and allowances due and credited with  time  in
grade  for  pay  promotion;  and,  his  records  be  expunged  of  all
derogatory information.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His military defense counsel failed him, in that the counsel failed to
thoroughly investigate his case, ignored his request to  be  tried  by
court-martial, pressured him into accepting a Chapter 4 discharge, and
provided incorrect advice regarding post service impact  of  an  Under
Other Than Honorable Conditions (UOTHC) discharge.

In support of his appeal, the applicant includes documents  associated
with the events and issues raised in his application.  The applicant’s
complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 16 March 1982 the applicant enlisted in the Regular  Air  Force  at
the age of 19 in the grade of airman basic (E-1) for a period of  four
years.  He was trained as a Security Forces Craftsman.  The  applicant
was progressively promoted to the grade of  technical  sergeant  (E-6)
effective and with a date of rank of 1 December 1997.  He received  20
performance evaluations between the period of 16  March  1982  and  30
April 1998, all rated with the highest overall  rating  and  promotion
recommendation available.

On  22  September  2000,  an  investigation  was  initiated  based  on
allegations  that  the  applicant  committed  a  sexual  assault.   On
21 November 2000, his immediate commander notified  the  applicant  of
the charges against  him  and  of  the  names  of  the  accusers.   On
22 November 2000, charges against  the  applicant  were  referred  for
trial  by  court-martial.   The  applicant  was  charged  with   three
specifications of maltreatment of a person subject to his orders,  one
specification of sodomy,  five  specifications  of  assault,  and  one
specification of indecent assault.  The charges alleged  a  number  of
instances of  sexual  harassment,  of  varying  degrees  of  severity,
involving four different victims.  On 7 December 2000,  the  applicant
submitted a request through his Area Defense Counsel to his  chain  of
command, requesting he be discharged in accordance with  AFI  36-3208,
Chapter 4, in lieu of trial by court-martial.   On  14 December  2000,
his commander forwarded the applicant’s request for approval.   On  15
December 2000 and 18 December 2000, the wing staff judge advocate  and
wing commander concurred with the  recommendation,  respectively.   On
19 December 2000,  the  discharge  authority’s  staff  judge  advocate
recommended approval of the applicant’s request for discharge in  lieu
of trial by court-martial and that the applicant be discharged with  a
UOTHC characterization of service.  On 22 December 2000, the discharge
authority approved the  applicant’s  UOTHC  discharge  for  misconduct
without probation or rehabilitation.  On 5 January 2001, the applicant
was  discharged  with  a  UOTHC   characterization   of   service,   a
reenlistment code  of  2B  (discharged  under  general  or  other-than
honorable conditions),  and  a  narrative  reason  for  separation  of
“Triable by Court-Martial.”  He served 18 years, 9 months and 20  days
on active duty.

On 22 November 2002, the Air  Force  Discharge  Review  Board  (AFDRB)
considered  and  approved  the  applicant’s  request  to  change   his
characterization  of  discharge   from   UOTHC   to   honorable,   his
reenlistment code to 3K (reserved for use by HQ AFPC or AFBCMR when no
other reenlistment eligibility  code  applies),  and  his  reason  for
discharge to “Secretarial Authority.”  Four  board  members  voted  to
grant the applicant’s request and one board member voted to change the
applicant’s characterization of discharge to “General.”

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA recommends denial of the applicant’s request.  JA states  that
the applicant’s basic premise is that he suffered an injustice because
his ill-prepared counsel persuaded him over his  strenuous  objection,
to submit a Chapter 4 request when he would have fared better  had  he
opted for trial by court-martial.  It is JA’s opinion  that  the  case
file does not support the applicant’s contentions.  JA states that  in
mid-2001, the applicant filed a complaint against his counsel  to  the
Office of  the  Judge  Advocate  General  (JAG)  alleging  ineffective
assistance  of  counsel.    On   7 February   2002,   after   a   full
investigation,  the  JAG  determined  the  applicant’s  complaint  was
unsubstantiated.

JA states that the applicant personally signed the  letter  requesting
the Chapter 4  discharge  and  acknowledged  the  adverse  nature  and
possible consequences of a UOTHC discharge.  The  discharge  authority
accepted the applicant’s request in  good  faith.   By  tendering  the
request, the  applicant  explicitly  recognized  that  the  Chapter  4
discharge would be in lieu of trial by court-martial -- the  procedure
that would otherwise have been used to resolve any factual disputes.

It is JA’s opinion that  the  applicant  has  failed  to  prove  by  a
preponderance of the evidence  that  his  request  for  discharge  was
anything other than knowing and voluntary.  It is  also  JA’s  opinion
that the applicant should not be allowed to use his discharge  request
to halt the court-martial process established by  law  as  the  proper
means to adjudicate the criminal  allegations  against  him  and  now,
under the guise of an allegation of error or injustice, litigate those
allegations contrary to the Chapter 4 request accepted in  good  faith
by the Air Force.  The fact that the  applicant  may  now  regret  his
decision does not constitute an error or injustice that would  justify
allowing him to revisit that decision three years  after  the  request
was tendered.  The JA evaluation, with attachments, is at Exhibit C.

AFPC/DPPRS recommends the application be denied.   DPPRS  states  that
based on the documentation in the file, the discharge  was  consistent
with the procedural and  substantive  requirements  of  the  discharge
regulation.  Additionally, the discharge was within the discretion  of
the discharge authority.  DPPRS states the  applicant’s  records  were
corrected after the AFDRB approved his request to change his discharge
characterization to honorable, his reenlistment code  to  3K  and  his
reason for discharge to “Secretarial Authority.”  DPPRS states that if
the Board decides to grant the applicant’s request, his DD  Form  214,
Certificate of Release or Discharge from Active Duty, will  be  voided
as if the separation never happened.  The AFPC/DPPRS evaluation is  at
Exhibit D.

AFPC/DPPPWB concurs with DPPRS’s evaluation  that  the  discharge  was
valid; however, if  the  Board  grants  the  applicant’s  request  for
reinstatement to active duty, his initial  grade  would  be  technical
sergeant with  a  date  of  rank  of  1  December  1997.   The  DPPPWB
evaluation is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By fax dated 31 July 2003, the applicant’s civilian counsel  requested
that his client’s application be temporarily withdrawn.  On  5  August
2003, the applicant was advised that  his  case  was  administratively
closed at the request of his  counsel.   The  case  was  reopened  via
counsel’s letter of 11 March 2004.

Counsel asserts that it is not surprising  that  JA  would  vehemently
oppose  the  applicant’s  motion,  nor  is  it  surprising  that   the
applicant’s area defense counsel claims he did everything just  right.
If the Board wishes to obtain the truth, then  a  personal  appearance
hearing is required where the  applicant’s  area  defense  counsel  is
present to swear under oath what he did or didn’t do.   The  applicant
and the applicant’s spouse did confirm under oath the  ineffectiveness
of the area defense counsel.   At  a  bare  minimum,  JA  should  have
obtained an affidavit from the applicant’s area defense counsel.   His
counsel’s only strategy was to get the applicant’s case off his  desk.
The applicant welcomes  and  encourages  the  opportunity  to  have  a
personal appearance hearing with his  area  defense  counsel  present.
There is ample evidence to grant relief  as  previously  demonstrated.
Counsel’s submission is at Exhibit G.

_________________________________________________________________

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  an  injustice.   The  applicant  seeks
reinstatement in the Air Force in the rank of technical sergeant, back
pay and allowances, credit for time in grade, and expungement  of  his
separation from his records.  In his submission  to  this  Board,  the
applicant asserts his military counsel failed him, in that the counsel
ignored his request to be tried by  court-martial  and  pressured  him
into accepting a Chapter 4 discharge.  The applicant also  appears  to
believe he has been exonerated based on the findings and  decision  of
the AFDRB.  After thoroughly reviewing the evidence  provided,  we  do
not find it sufficient to warrant approval of the relief the applicant
seeks from this Board.  We have reviewed the decision document of  the
AFDRB and, contrary to the  applicant’s  assertions,  it  appears  the
AFDRB’s findings were based not  on  error,  but  rather  on  possible
injustice.  Specifically, the AFDRB concluded that the  discharge  was
consistent with the procedural and  substantive  requirements  of  the
discharge regulation and  was  within  the  sound  discretion  of  the
discharge authority.  However, the AFDRB noted the advice given to the
applicant by his ADC was possibly incorrect, and that  there  were  no
third party witnesses confirming the alleged incidents. In view of the
foregoing, the applicant’s testimony, and the overall quality  of  his
service, the AFDRB  concluded  there  was  sufficient  mitigation  and
extenuation to upgrade his discharge to honorable and  to  change  the
reason for his separation and his RE code.  In our opinion,  based  on
the totality of the evidence provided, the corrections to  the  record
approved by the AFDRB were proper  and  fitting,  and  further  relief
would not be appropriate.   In  cases  of  this  nature,  we  are  not
inclined to reverse the decisions  of  commanding  officers,  who  are
closer to events, in the absence of error or  abuse  of  discretionary
authority.  In this case, the applicant’s commanders  determined  that
the evidence against him was credible.  We believe it should be  noted
that the applicant was a mature senior noncommissioned officer.  Other
than his own  assertions,  he  has  provided  no  persuasive  evidence
showing he was miscounseled, that his decision to  request  separation
in lieu of trial was coerced in any way, or that his commanders abused
their  discretionary  authority  when  they  accepted  his  offer  and
approved his discharge.  In the absence of  such  evidence,  we  agree
with the opinions and recommendations of  the  Air  Force  offices  of
primary responsibility and adopt their rationale as the basis for  our
conclusion that the applicant has not been the victim of an error.  In
view of the foregoing, we conclude that no basis exists  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 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  this  application  in
Executive Session on 11 May 2004, under the provisions of AFI 36-2603:

            Mr. John L. Robuck, Panel Chair
            Ms. Olga M. Crerar, Member
            Ms. Martha J. Evans, Member

The following documentary evidence for AFBCMR Docket  Number  BC-2003-
01216 was considered:

      Exhibit A.  DD Form 149, dated 30 Mar 03.
      Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  Letter, AFPC/JA, dated 11 Jun 03.
      Exhibit D.  Letter, AFPC/DPPRS, dated 6 May 03.
      Exhibit E.  Letter, AFPC/DPPPWB, dated 13 May 03.
      Exhibit F.  Letter, SAF/MRBR, dated 8 Apr 04.
      Exhibit G.  Applicant’s Rebuttal, 11 Mar 04.



                             JOHN L. ROBUCK
                                             Panel Chair