RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2003-02937
            INDEX NUMBER:  105.00
      XXXXXXXXXXXXX    COUNSEL:  None

      XXX-XX-XXXX      HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His dismissal from the Air Force by  sentence  of  a  general  court-
martial be upgraded to a general discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In  a  four-page  letter,  applicant   provides   the   details   and
circumstances of  the  events  that  led  to  his  court-martial  and
dismissal from service.  He also discusses the impact  his  dismissal
from the Air Force has had on  his  ability  to  earn  a  living  and
support his family.  His hope is that the Board will  understand  his
“motive” from a personal point of view and see  fit  to  upgrade  his
dismissal.

The  applicant’s  former  military  counsel   provides   a   six-page
memorandum requesting that his dismissal be upgraded on the basis  of
clemency.  She asserts that the years of  outstanding  and  honorable
service the applicant provided to the Air Force  warrants  his  being
given a general discharge.  She provides a summary of the applicant’s
assignments and accomplishments.

The applicant’s former military counsel also indicates that there are
extenuating and mitigating circumstances surrounding the  applicant’s
conduct for which he was court-martialed.  Since  the  applicant  was
court-martialed for  events  surrounding  his  relationship  with  an
enlisted member of his unit (now his wife), counsel provides a review
of the circumstances leading up to the applicant’s court-martial, the
breakdown of the applicant’s marriage at the time and his  subsequent
involvement with his current wife, then an  enlisted  member  of  his
unit.

Counsel  further  discusses  the  actions  of  the  applicant’s  unit
regarding treatment of the enlisted member he was involved  with  and
their inconsistent enforcement  of  a  no-contact  order.   She  also
opines that the Air Force made the applicant’s situation worse by the
taking a prolonged period of time to go to trial.

Due to the dismissal in his record, the applicant’s ability to earn a
living has been compromised.  Finally,  applicant’s  former  military
counsel discusses the applicant’s  case  in  light  of  another  high
profile similar case.  She asserts that there were over 500  officer-
enlisted marriages in the Air Force at the time  of  the  applicant’s
trial.  In fact, the applicant’s commander at the time of  his  trial
was married to an enlisted  member.   Presumably,  these  individuals
fraternized to some extent before they married.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 25 Dec 86.   On
22 Apr 99, while serving in the grade of captain, applicant was tried
before  a  general  court-martial.    He   was   charged   with   one
specification of conspiracy to obstruct justice,  two  specifications
of  willfully  disobeying  a  superior  commissioned   officer,   one
specification of violating a  lawful  general  regulation  on  divers
occasions (fraternization), and two specifications of obstruction  of
justice in violation of Articles 81, 90, 92, and 132 of  the  Uniform
Code of Military Justice.   Pursuant  to  the  applicant’s  pleas  of
guilty, he was convicted of all  charges.   The  applicant  chose  to
present his case  on  sentencing  to  a  panel  of  officers.   After
considering all of the evidence presented by both the government  and
the applicant, the panel sentenced the applicant to be dismissed from
the Air Force and to 15 days confinement.

The  court-martial  convening  authority  approved  the   applicant’s
sentence on 19 Jun 99.  Because the applicant’s sentence  included  a
dismissal, it was reviewed by the United  States  Court  of  Criminal
Appeals, which, on 5 Oct 99, affirmed the findings of guilt  and  the
sentence.  On 3 Aug 00, the SECAF approved the applicant’s  sentence.
The applicant was dismissed from the Air Force effective 21 Aug 00.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s appeal.   They  point
out that the AFBCMR’s ability to correct records  related  to  court-
martials is limited.  They provide a copy of the stipulation of fact,
signed by the applicant, which gives the details of  the  applicant’s
crimes.

The applicant was tried in the appropriate forum and  pleaded  guilty
and admitted his crimes.  The maximum punishment authorized  for  the
offenses  that  the  applicant  was  convicted  of   was   dismissal,
confinement for 22 years, and forfeiture of all pay  and  allowances.
The terms of a  pretrial  agreement  capped  the  maximum  amount  of
confinement at nine months and prohibited commuting a dismissal  into
confinement.  So, at the  time,  the  applicant  preferred  dismissal
rather than additional jail time.

The appropriateness of the applicant’s sentence was reviewed  by  all
the  levels  required  by  statute,  including,  personally,  by  the
Secretary of the Air Force (SECAF).  The applicant  had  the  capable
assistance  of  counsel  in  presenting  extenuating  and  mitigating
matters to the court, the convening authority, and  the  SECAF.   The
applicant provides no compelling rationale to mitigate  the  approved
dismissal given the circumstances of his case.

Regarding clemency, all of the grounds applicant puts forward in  his
application for relief were before the court members,  the  convening
authority, or the SECAF.  Whatever the truth  about  the  applicant’s
marital relationship, the explanation given in  his  application  for
his unconcealed fraternization with his subordinate,  obstruction  of
justice, and blatant  disregard  of  several  lawful  orders  of  no-
contact, is no justification for his actions.   Applicant’s  previous
service record was before the court and it is reasonable to  conclude
that, but for his record, his sentence would have been  more  severe.
The applicant’s crimes simply cannot be  reconciled  with  a  general
discharge as he seeks.

The complete evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant  on
7 Nov 03 for review and comment within 30 days.  To date, a  response
has not been received.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law
or regulations.

2.  The application was timely filed.

3.  Sufficient  relevant  evidence  has  been  presented  to  warrant
granting the applicant a measure of  relief  based  on  clemency.   A
majority of the Board believes  that  the  long-term  impact  of  the
applicant’s dismissal from the Air Force is disproportionate  to  the
offenses he was convicted of.  Additionally,  the  majority  believes
that the  applicant’s  12  years  of  exemplary  service  provides  a
sufficient  basis  to  grant  clemency.    Given   the   stigma   and
consequences of a  court-martial  conviction,  the  loss  of  a  once
promising Air Force career, and the time spent in confinement, albeit
short, an upgrade to a general discharge based on clemency in no  way
diminishes  the  message   that   has   been   sent   regarding   the
inappropriateness of the applicant’s actions.  Rather,  the  majority
notes that the applicant has endeavored to  lead  a  productive  life
since leaving the Air Force but has been stymied by the  far-reaching
effects of the dismissal documented in his records.  The majority  of
the Board views clemency as a reasonable action that will  allow  the
applicant to lead a productive  life  and  provide  for  his  family.
Therefore, the majority recommends that the  applicant’s  records  be
corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department  of  the  Air  Force
relating to APPLICANT be corrected to show that on 21 August 2000  he
was discharged from the Air Force  by  General  Court  Martial  Order
Number 11, dated 3 August 2000, with service characterized as general
(under honorable conditions).

_________________________________________________________________

The following members of the Board  considered  this  application  in
Executive Session on 7 January 2004, under the provisions of AFI  36-
2603:

      Mr. Albert F. Lowas, Jr., Panel Chair
      Mr. Mike Novel, Member
      Ms. Martha Maust, Member

By majority  vote,  the  Board  voted  to  correct  the  records,  as
recommended.  Mr. Novel voted to deny and  has  attached  a  minority
report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Aug 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 23 Oct 03.
    Exhibit D.  Letter, SAF/MRBR, dated 7 Nov 03.
    Exhibit E.  Minority Opinion.




                                   ALBERT F. LOWAS, JR.
                                   Panel Chair

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                          FOR CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXXX, XXX-XX-XXXX

          On 7  January  2004,  the  Board  considered  and  denied  an
application for correction of military records  pertaining  to  subject
applicant.  The majority of the Board voted to  grant  the  applicant’s
request for a clemency upgrade of his dismissal  to  a  general  (under
honorable  conditions)  discharge.   While  I  understand  the  Board’s
rationale to grant clemency on  the  grounds  that  the  applicant  has
already been sufficiently and appropriately punished and the desire  to
not have this one mistake continue to impact his  life  and  future,  I
cannot agree with that  decision.   The  applicant  pleaded  guilty  as
charged at his court-martial.  He did so on the basis of  a  sentencing
agreement that limited the time that he would  be  in  confinement.   I
have to believe that the applicant knew at the time  of  his  plea  the
limiting impact his conviction  would  have  on  his  life  and  future
earning potential.

          I cannot support  a  decision  to  grant  for  the  following
reasons.   First,  as  a  captain  with     12  years  experience,  the
applicant  fully  knew  that  his  actions  were  against   Air   Force
regulations.  Second, while he contends that his actions did not impact
his unit’s performance, morale, or reputation, he ignores  the  serious
nature of his offense.  For a captain with 12 years experience  and  an
aircraft commander,  his  act  of  fraternization  with  a  19-year-old
airman, reflects a flagrant disregard for the good order and discipline
of his unit.

           Finally,  and  most  disturbing,  are  the  actions  of  the
applicant once his improprieties were brought to the attention  of  his
chain of command.  He left his superiors no course of action other than
court-martial.  After the investigation was  started  and  through  the
course of the case, the applicant continued his relationship  with  the
airman.  He had ample opportunity to stop his  actions  and  avoid  the
serious consequences he eventually suffered.  In my opinion  he  showed
no respect for his unit, his Commander, or the Air Force by  continuing
the relationship.  In fact, he flaunted the relationship to  the  point
that he actually moved in to the same household with the airman and two
of her female enlisted friends.

          Although the applicant’s request is  made  on  the  basis  of
clemency, it has  only  been  a  little  over  three  years  since  his
dismissal.  It is my understanding that, generally, this  Board  weighs
heavily the amount of time that has passed as well  as  an  applicant’s
post-service activities in determining whether  to  grant  clemency  in
requests for discharge upgrades.  In this case, the majority is  basing
their decision to grant clemency almost solely on  the  adverse  impact
the applicant’s sentence is having on his ability to earn a livelihood.
 To grant clemency at this point undermines the board of officers  that
determined the applicant’s actions warranted the tough punishment  they
meted out.



                                        MICHAEL NOVEL
                                       Panel Member
AFBCMR BC-2003-02937


MEMORANDUM FOR THE CHIEF OF STAFF

      Having received and considered the recommendation of the Air
Force Board for Correction of Military Records and under the
authority of Section 1552, Title 10, United States Code (70A Stat
116), it is directed that:

      The pertinent military records of the Department of the Air
Force relating to XXXXXXXXX, XXX-XX-XXXX, be corrected to show that
on 21 August 2000 he was discharged from the Air Force by General
Court Martial Order Number 11, dated 3 August 2000, with service
characterized as general (under honorable conditions).




            JOE G. LINEBERGER
            Director
            Air Force Review Boards Agency