RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBERS:  BC-2003-02729
            INDEX CODE 111.02  110.02
            COUNSEL:  DAV

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The referral Airman Performance Report (APR)  closing  30  Mar  83  be
voided from his records and replaced with the “original one  that  had
straight 9s,” his 1983 general discharge be upgraded to honorable  and
the reason for  the  discharge  be  changed  to  “Convenience  of  the
Government.”

_________________________________________________________________

APPLICANT CONTENDS THAT:

The contested APR was originally exemplary and reflected all  9s,  but
was illegally changed to a referral APR. The  original  version  would
have likely allowed him to remain in the service or at  least  receive
an honorable discharge. The commander indicated when questioned  under
oath at the Administrative Discharge Board (ADB) that he  didn’t  know
if he [the applicant] had  committed  the  crimes.  If  the  commander
didn’t know, how could he have written the referral APR?  The  illegal
APR was the lynchpin for the way the ADB voted. He was  never  charged
or arrested.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 12 Jan  76.  During
the period in question, he was a staff sergeant (SSgt) assigned to the
XXXXth Communications Squadron  (XXXX  CS)  at  XXXXXX  AFB,  XX.  The
following information was extracted from official  documents  provided
by the applicant and contained in his military personnel records.

Apparently an  Air  Force  Office  of  Special  Investigation  (AFOSI)
inquiry was conducted regarding allegations of sexual abuse  committed
by the applicant on his six-year old daughter and  her  five-year  old
cousin. A clinical  psychologist  reported  on  23  Nov  82  that  the
applicant, the mother and the daughter were  interviewed.  The  mother
and the applicant were divorced. The abuse allegedly took place in Apr
82 while the applicant was visiting for  a  couple  of  days  and  the
mother and aunt were out of the house. The child reported the incident
to the mother when the applicant left the next day. The daughter  also
disclosed the applicant had sexually abused her while the  family  was
stationed in the Philippines and that her younger sister had also been
involved. The mother,  also  an  enlisted  member,  related  that  the
daughter had no history of behavior problems or unusual  interests  in
sexual  matters.  She  denied  knowledge  of  this  incident  when  it
occurred. The psychologist opined there was sufficient information  to
support suspected sexual abuse.

On 2 Jan 83, the applicant was assigned to the High-Risk Driver Mishap
Prevention Program from 10 Jan-10 Mar  83  for  having  committed  two
speeding violations in two months.

On  31  Mar  93,  the  applicant  was  informed  the   commander   was
recommending him for  involuntary  discharge  for  a  serious  offense
involving sexual  deviation,  i.e.,  indecent  acts  with  and  sexual
assault on a child under 16 years from about 28 Mar to 12 Apr 82.  The
commander also advised he was recommending the  applicant  receive  an
under-other-than-honorable-conditions   discharge   (UOTHC)    without
probation and rehabilitation (P&R).  The  applicant  acknowledged  his
understanding.

On 31 Mar 93, the commander recommended  to  the  discharge  authority
that the applicant be discharged without P&R. The letter reported  the
overall ratings of nine APRs, including one listed as 30 Mar 83 with a
9 rating. However, in a letter dated 6 Apr 83, the commander, who  was
an indorser for the 30 Mar 83  APR,  amended  his  recommendation  for
discharge and advised the applicant to disregard the 9  rating  listed
on the Recommendation for Discharge for the 30 Mar 83 EPR  because  an
overall rating could not be assigned at the time as  all  indorsements
were not complete.

The applicant’s former area defense counsel  (ADC)  responded  to  the
commander on 11 Apr 83, raising certain discrepancies he noted on  the
contested report, which apparently had been referred to the  applicant
on 6 Apr 83. The ADC took exception to the  level/order  of  indorsers
and comments made by the commander.

The APR closing 30 Mar 83 was referred to the applicant on 25 Apr  83.
The APR reflects 9 ratings in most categories by  the  rater  and  the
first indorser. However, in the  Bearing  and  Behavior  section,  the
first indorser gave the applicant a zero. In the  Overall  Evaluation,
the rater gave the applicant a 9, but the first  indorser  and  second
indorser (commander) both gave him zeros.

The new ADC rebutted the referral report on 17 May 83,  asserting  the
rater and first  indorser  were  directed  to  write  an  APR  on  the
applicant in conjunction  with  the  administrative  action.  The  ADC
stated both the  rater  and  first  indorser  submitted  an  APR  with
straight 9 ratings. The commander rejected this report and another APR
was rendered. The ADC  noted  his  predecessor’s  questioning  of  the
propriety of this report, which resulted in the contested APR. The ADC
contended that if this narrative were correct, the  referral  APR  was
unjust and should not be entered  into  the  record.  He  argued  that
merely because the AFOSI investigation was  marked  “closed”  did  not
mean the investigation  was  finalized  or  completed,  and  that  the
release of the AFOSI report to the first two evaluators was  improper.
[No  further  documents  are  included  in  the   available   records;
apparently the contested APR in its present form was made a matter  of
record.

On 9 Aug 83, the applicant was directed to appear before  an  ADB  and
advised of his rights. The applicant acknowledged receipt and,  on  19
Aug 83, the ADB convened at Ellsworth  AFB.  The  applicant’s  counsel
objected to the inclusion of the contested report. The  legal  advisor
stated as it was presently in the applicant’s records he  would  admit
the APR but  with  an  explanatory  letter.  The  applicant’s  counsel
pointed out the APR was being appealed and the legal advisor stated if
such information was not included in the  exhibit,  counsel  would  be
permitted to  apprise  the  board  members  of  the  fact.  The  board
determined the applicant did commit the indecent acts on his daughter,
was not suitable for P&R, and should be discharged for misconduct with
a general characterization. The Record  of  Board  Proceedings  is  at
Exhibit B.

A legal review on 14 Sep 83 found the case legally sufficient with  no
errors or irregularities  and  recommended  the  board’s  findings  be
approved. The ADC provided a statement for consideration on 29 Sep 83;
he did not raise the issue of the APR. On 21  Sep  83,  the  discharge
authority concurred with the legal review.

On 23 Sep 83, the applicant was discharged in the grade of SSgt  after
7 years, 8 months and  12  days  of  active  service  with  a  general
characterization for misconduct-sexual deviation.

On 3 Oct 83, the applicant requested, through the Air Force  Discharge
Review Board (AFDRB), an upgraded discharge and a changed  reason  for
discharge. On 21 May  85,  after  a  personal  appearance,  the  AFDRB
determined  the  applicant  had  not  suffered   bias,   inequity   or
impropriety and denied his appeal.

_________________________________________________________________

AIR FORCE EVALUATION:

HQ AFPC/DPPPEP notes this issue of the contested report was  addressed
years ago and there is no evidence that a  straight  9  APR  was  ever
rendered, changed or even existed. The point is  actually  moot  since
performance reports are working copies until such  time  as  they  are
filed in the records as a permanent matter of record. As such, even if
the report was originally a “straight 9” as the applicant alleges,  if
information came to light prior to the report being finalized, it  can
be reaccomplished with more appropriate ratings. Most of  the  ratings
by the rater are 9s, to include the overall evaluation.  However,  the
first and second indorsers marked the report down, specifically  to  a
zero rating under Bearing and Behavior and the Overall Evaluation. The
ratings seem logical. The  reason  for  the  Report  is  “Directed  by
Commander”  and  was  being  processed  for  use  in  the  applicant’s
administrative discharge action.  It  would  make  no  sense  for  the
commander to direct a report on an individual who is  being  processed
for administrative discharge action due to sexual  misconduct  and  to
rate the member a highest rating of 9 on the  report.  The  first  and
second indorsers appear to have carefully reviewed each  category  and
rated appropriately. The AFDRB found in 1985  that,  contrary  to  the
applicant’s assertions, the record showed the government  carried  its
burden of proof in establishing his misconduct by a  preponderance  of
the evidence. Denial is strongly recommended.

A complete copy of the evaluation is at Exhibit C.

HQ  AFPC/DPPRSP  recommends  denial  because  the  applicant  has  not
submitted any new evidence or identified  errors  or  injustices  that
occurred in the discharge processing. He acknowledged receipt  of  his
discharge notification for misconduct and  that  he  could  receive  a
UOTHC characterization.

A complete copy of the evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Complete copies of the Air Force evaluations  were  forwarded  to  the
applicant on 31 Oct 03 for review and comment within 30 days.

On 3 Dec 03, per the applicant’s 19 Nov 03  request,  a  copy  of  his
application was sent to him and copies of the advisory  opinions  were
forwarded to the Disabled American Veterans (DAV), as  his  designated
counsel. The applicant was also advised that if he wanted  a  copy  of
his military  records,  processing  of  his  case  would  have  to  be
suspended temporarily while his records were returned to Randolph  AFB
for copying. He was asked to advise the AFBCMR Staff if  he  wanted  a
copy of his military records.

As of this date, this office has received no further response.

_________________________________________________________________

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 to warrant granting relief.  After
a thorough review of  the  evidence  of  record  and  the  applicant’s
submission, we are not persuaded that the 30  Mar  83  APR  should  be
replaced  or  his  general   discharge   upgraded.   The   applicant’s
contentions are duly noted; however, we do not find these  assertions,
in and by themselves, sufficiently persuasive to  override  the  ADB’s
findings in 1983, the AFDRB’s determination in 1985  and  Air  Force’s
rationale today regarding his discharge and the APR. In  view  of  the
above and absent persuasive evidence to the contrary, we conclude  the
applicant has failed to sustain his burden of having  suffered  either
an error or an injustice and find no  compelling  basis  to  recommend
granting the relief sought.
_________________________________________________________________

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 22 January 2004 under the provisions of  AFI  36-
2603:

                 Mr. Michael K. Gallogly, Panel Chair
                 Mr. Gregory H. Petkoff, Member
                 Mr. Albert C. Ellett, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2003-02729 was considered:

   Exhibit A.  DD Form 149, dated 11 Jul 03 , w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPPEP, dated 14 Oct 03.
   Exhibit D.  Letter, SAF/MRBR, dated 31 Oct 03.
   Exhibit E.  Letter, Applicant, dated 19 Nov 03.
   Exhibit F.  Letters, AFBCMR, dated 3 Dec 03.



                                   MICHAEL K. GALLOGLY
                                   Panel Chair