RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:            DOCKET NUMBER:  BC-2004-00252

                 COUNSEL:  MATTHEW S. FREEDUS

                 HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge  be  re-characterized  as
honorable and he be permitted to retire with full pension benefits.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was discharge by an Air Force board after 19.5 years of TAFMS  without  a
pension due to an off-duty felony conviction.  During the Board  of  Inquiry
(BOI) process, no advisement by any Air Force entity, agency or  person  was
ever given to him or the convening  discharge  board  regarding  “length  of
service consideration.”  Such advisement, if  it  had  been  introduced  and
considered, may  have  resulted  in  a  different  outcome  of  the  board’s
findings and/or the characterization of his discharge type.

Applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as  an  airman  basic  on  7
July 1981 and served for 9  years,  7  months  and  6  days  before  he  was
commissioned as a 2nd lieutenant on 13 February  1991.   The  applicant  was
discharged  from  the  Air  Force  on        11  December  2000  under   the
provisions of AFI 36-3207, Separating Commissioned Officers  (Board  Hearing
- Misconduct) with an general (under honorable  conditions)  discharge.   He
had served 19 years, 5 months and 5 days total military service.

On 3 March 2000, the applicant was notified by his  commander  that  he  was
initiating action in accordance with AFI 36-3206,  Administrative  Discharge
Procedures for Commissioned Officers, Chapter  3,  para  3.6.4  (serious  or
recurring misconduct punishable by military  or  civilian  authorities)  for
engaging in serious misconduct, in that a Colorado court  convicted  him  of
enticement of a minor, a Class 4 Felony.

The applicant acknowledged receipt of the notification of  action  initiated
under AFI 36-3206 on 15 May 2000.  A Board of Inquiry (BOI) was held  on  25
July 2000 and findings and recommendation were  to  separate  the  applicant
with a general (under honorable conditions) discharge.

On 6  September  2000,  the  discharge  authority  reviewed  the  record  of
proceedings from the BOI and agreed with the recommendation of the BOI  that
applicant be separated from the Air Force with a  general  (under  honorable
conditions) discharge.

On 18 October 2000, HQ  USAF/JAG  reviewed  the  BOI  record  and  found  it
legally sufficient to support  the  recommendation  that  the  applicant  be
separated from the Air Force with a  general  (under  honorable  conditions)
discharge

On 29 November 2000, the Secretary of the Air Force directed  the  applicant
be separated from  the  United  States  Air  Force  with  a  general  (under
honorable conditions) discharge.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommends denial.  Based on the documentation  on  file  in  the
master personnel records, the discharge was consistent with  the  procedural
and substantive requirements of the  discharge  regulation.   The  discharge
was within the discretion of the discharge authority.

The applicant did  not  submit  any  evidence  or  identify  any  errors  or
injustices that occurred in the discharge processing.  He provided no  facts
warranting an upgrade of his discharge.

AFPC/DPPRS complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air  Force  evaluation  and  stated  he  respectfully
disagreed with the recommendation of AFPC/DPPRS.  He believes his  discharge
or the discharge process was not consistent with procedural and  substantive
requirements of the discharge regulation and for the  below  listed  reasons
and facts.  He is a victim of error and injustice.

First, the attached discharge worksheet used by the 25 July  2000  discharge
board in his opinion is flawed.  This worksheet was used by three  convening
board of colonels, which more or less  forces  them  to  reach  a  discharge
decision.  No positive  statements  or  any  lengthy  service  consideration
mentions are on this form.  When he examined the worksheet at  the  time  of
the board, he was dismayed and found that it had no other  possible  outcome
other than for the convening members to recommend discharge.  The  worksheet
acts like a mousetrap with no intent to uphold the purpose of any  governing
discharge   regulation.    Consideration   for   what   actually   happened,
circumstances surrounding the  event,  one’s  service  record,  and  lengthy
service consideration should all be mentionable  parts  in  this  worksheet.
Based on these facts and the nature of this form, the process is flawed  and
unjust.

Secondly, the Staff Judge Advocate advised him via  AF  Council  on  several
occasions that a General Court Martial would be pursued if he did not  plead
guilty to the Colorado charge of “Enticement of a Child.”  The  JA  told  us
he would also seek six years in  prison  even  though  the  Pueblo  Colorado
district attorney sought no jail time.  Additionally, the District  Attorney
in Colorado seemed unwilling to try this case and told him that  if  he  did
not plead guilty to the  charge,  he  would  turn  this  case  over  to  the
military for them to decide, thus opening the door for a court  martial  and
a potential six years in prison.  He emphasize that this case was  based  on
a police sting operation and that there was  no  victim.   During  the  time
leading up to the board, he feared the ultimate  punishment  of  prison  and
therefore plead guilty of the charge.  He also pointed out that  the  person
portraying the 14 year old girl was in fact an adult female  working  as  an
under cover police officer.  Voice mails were also exchanged,  and  although
wrong, curiosity to meet this person got the better of him.  It is  possible
that  here  would  have  been  no  conviction  if  JA  had  not  made  these
unnecessary threats.  These acts  by  JA  before  any  trial  or  board  had
convened were an injustice to him.

On 11 April 2004, his law firm Feldesman, tucker, LLP requested through  the
Freedom of Information Act  (FOIA)  documents  signed  or  reviewed  by  the
Secretary of the Air Force leading up  the  final  discharge  decision.   We
received nothing along those lines.  He does not believe that the  Secretary
of the Air Force was actually ever consulted nor were  any  facts  presented
to him.  It appears that no staff summary sheet or letter  was  ever  signed
by the Secretary of the  Air  Force  indicating  his  required  review.   He
believes to be a serious decision step in the  discharge  process  that  was
missed.

He is troubled  with  recent  developments  in  the  Middle  East  regarding
prisoner  treatment  and  human  rights  abuses.   Every   one   should   be
responsible  for  their  actions  and  this   includes   airmen,   soldiers,
commanders,   government   agency   officials,   and    ever    Secretaries.
Accountability is where the rubber meets the road and it is time to  perhaps
talk about some other things that happened  to  him  during  his  Air  Force
career.  If needed, he has detailed  information  for  the  AFBCMR  that  he
could share with you upon request.  This information includes activities  of
sexual relations and intercourse between him and the wife of an  active-duty
Air Force Lieutenant General.  This happened at the time  of  his  technical
training during his first four months of service.  Several years  later,  he
was also sexually mistreated by a  male  Air  Force  master  sergeant  in  a
supervisory position, which until now had also not been reported.  He  bring
this information to light now, because Air Force counsel  Capt  R__  at  the
time advised him not to talk about this at the  discharge  board.   However,
he believes this information does have relevance to his case.  It  was  past
behavior that he was being judged for at the board  and  these  events  were
corollary to his behavior and had not been considered  by  any  board.   The
Board should also know that he chose not to address these problems  at  that
time of their occurrence.  These were things a young enlisted individual  on
active duty should not have come forward with.

He hereby request the Board to  review  these  facts  and  circumstances  of
injustice and that his general (under  honorable  conditions)  discharge  be
upgraded to honorable.  He is asking  to  be  afforded  the  opportunity  to
finish out his last 6 months to reach  20  years  of  total  active  federal
military service (TAFMS).  If service is no longer possible, he  would  like
the AFBCMR to query the Secretary of the Air Force for  a  waiver  of  those
last 6 months of service and that he or she permit him to retire  with  full
pension benefit.  Aside from this one  incident,  he  served  honorably  for
nearly twenty years.  As a minimum, he  hopes  the  AFBCMR  could  take  the
necessary actions to restore the financial aspects of his pension, which  he
feels is still owed him.

Applicant’s complete response is at Exhibit E

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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 that failure to timely file.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  We  thoroughly  reviewed  the  applicant’s
entire record and the circumstances  surrounding  his  discharge.   In  this
respect, we note that,  due  to  the  applicant’s  misconduct,  a  Board  of
Inquiry convened to investigate the pertinent  facts  and  circumstances  to
determine whether the applicant should be discharged from  all  appointments
held in the Air Force.  After considering the evidence  and  testimony,  the
board determined that the applicant’s appointment in the Regular  Air  Force
should be terminated and  that  he  be  discharged  with  a  general  (under
honorable conditions) discharge for  engaging  in  serious  misconduct.   In
cases such of this nature, we are not inclined to disturb  the  judgment  of
commanding officers absent  a  strong  showing  of  abuse  of  discretionary
authority.  We believe the  Board  of  Inquiry  members  were  in  the  best
position to weigh the  evidence  in  the  case  and  judge  the  applicant’s
credibility, as well as that of the statements made in this case,  prior  to
recommending the discharge action.  Other than  the  applicant’s  assertion,
no evidence has been presented to show an abuse of authority by  his  former
wing commander or that of  the  members  of  the  Board  of  Inquiry.   With
regards to  the  applicant’s  allegation  that  the  Board  of  Inquiry  was
anything but fair  and  impartial  due  to  the  composition  of  the  board
members, we note that he was represented by counsel and, as  the  Report  of
Proceedings reveals, the applicant was satisfied  with  the  composition  of
the board and challenged  no  member.   In  regards  to  length  of  service
consideration, the Board notes that the applicant  presented  120  exhibits,
11 character statements, one personal testimony  that  the  BOI  considered,
however, the BOI recommended that the applicant not be  retained  on  active
duty.  In view of the totality of the circumstances, we  found  no  evidence
that pertinent Air Force regulations were violated  or  that  the  applicant
was not afforded all the rights  to  which  entitled  during  the  Board  of
Inquiry proceedings and ultimate discharge.  In view of  the  above  and  in
the absence  of  evidence  that  the  applicant’s  substantial  rights  were
violated, or that his superiors abused  their  discretionary  authority,  we
find no compelling basis upon which to favorably consider this appeal.

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 AFBCMR Docket Number  BC-2003-
1739 in Executive Session on 27 July 2004, under the provisions of  AFI  36-
2603:

                 Ms. Cathlynn B. Sparks, Panel Chair
                 Ms. Renee M. Collier, Member
                 Ms. Barbara R. Murray, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 May 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 15 Mar 04
    Exhibit D.  Letter, SAF/MRBR, dated 19 Mar 04
    Exhibit E.  Letter, Applicant’s response, 11 May 04




                                   CATHLYNN B. SPARKS
                                   Panel Chair