RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2004-00383
                                             INDEX CODE:  110.02
                                             COUNSEL:  NONE
                                             HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  undesirable  discharge  be  upgraded  to   general   (under   honorable
conditions).
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APPLICANT CONTENDS THAT:

For many years he has felt terrible for the German woman who  was  raped  in
the back seat of his car.  He should have reported it to the Air  Police  or
to his Squadron First Sergeant.  Looking back  now,  he  feels  he  did  not
report the crime because he was afraid of what it could do to his  marriage,
his career and he did not want to believe  that  his  friend  had  committed
this crime in the back seat of his car.  The German court convicted  him  of
rape because his car was used in the crime.  He was sentenced  to  one  year
in jail but was later probated.  He was court-martialed and discharged  from
the  Air  Force  with  an  undesirable  discharge.   He  believes  that  the
discharge he received was too severe especially when the  witness  testified
that he tried to help and did not  commit  the  crime.   It  has  been  over
thirty years since this injustice and would sincerely appreciate an  upgrade
of his discharge to general.  He is a licenate (Associate Minister) for  the
Cumberland Presbyterian Church in Providence, KY.  He is  also  the  founder
and director of a youth gospel  choir,  member  of  the  Order  of  Kentucky
Colonels and serves on the County Executive Democratic Committee.

In support of his request,  he  submits  a  personal  statement,  supporting
letters from his wife and daughter, character reference  letters,  newspaper
clippings and certificates  of  achievement.   The  applicant’s  submission,
with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 16 August 1968, the applicant enlisted in the Regular Air  Force  in  the
grade of airman basic (E-1) for a period of 4 years.  He  was  progressively
promoted to the grade of sergeant (E-4), effective and with a date  of  rank
of 1 February 1971.

From 19 February 1969 to 26 March 1969, he was charged with Absence  Without
Leave (AWOL).  For this incident, he  was  convicted  by  a  Summary  Court-
Martial.  He was sentenced to confinement at hard labor for 30 days.

On or about 1 August 1973, without proper authority the applicant failed  to
go at the time  prescribed  to  his  appointed  place  of  duty.   For  this
incident, he received a letter or reprimand.

From 21 May 1973 to 22 May 1973, he was confined in  a  civilian  jail.   He
was charged with rape.  Based on  a  translation  of  a  letter  from  civil
authorities to the applicant’s commander, dated 7 May  1974,  the  applicant
was sentenced to one-year of imprisonment with probation.

On 17 May 1974, in accordance  with  AFM  39-12,  Chapter  2,  Civil  Court
Conviction, the  commander  initiated  discharge  proceedings  against  the
applicant.  This action was based on the applicant’s conviction by a  civil
court for rape.  The applicant was advised of his rights  in  this  matter.
After consulting military legal counsel, the applicant requested a  hearing
before an administrative discharge board.  A Board of Officers convened  to
hear the case  on  23  July  1974.   The  applicant  was  present  and  was
represented by counsel.  After hearing  the  testimony  and  reviewing  the
evidence, the board recommended that he be discharged from the service  for
misconduct because  of  a  civil  court  disposition  with  an  undesirable
discharge.  On 23 August 1974, the base staff judge advocate recommended to
the base commander that the applicant be retained in the Air  Force  or  if
the commander felt retention was inappropriate, the applicant be  honorably
discharged.   On  28  August  1974,  the  commander  recommended  that  the
applicant be discharged from the Air Force with an honorable discharge.  On
27 September 1974, in a legal review by the Headquarters United States  Air
Forces in Europe (USAFE) of the discharge case file, the deputy staff judge
advocate found it legally sufficient and recommended that the applicant  be
discharged from the  Air  Force  for  misconduct  because  of  civil  court
disposition with an undesirable  discharge,  without  the  opportunity  for
probation  and  rehabilitation.   On  30 September  1974,   the   discharge
authority directed that the applicant be  discharged  from  the  Air  Force
under the provisions of AFM 39-12, Chapter  2,  result  of  a  civil  court
disposition, with an undesirable discharge.  The applicant  was  discharged
on 16 October 1974 with an under other than honorable conditions discharge.
 He served 6 years, 1 month and 29 days on active duty.  Time lost  was  37
days due to AWOL and confinement.

Pursuant  to  the  Board’s  request,  the  FBI  provided  a  copy   of   an
Investigative Report, No. 154062HA3, which is at Exhibit E.
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AIR FORCE EVALUATION:

AFPC/DPPRS recommends the application be  denied.   DPPRS  states  that  the
discharge was consistent with the procedural  and  substantive  requirements
of the discharge regulation and the applicant has not identified any  errors
or injustices warranting a change of his discharge.   The  DPPRS  evaluation
is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 9 April and 29 April 2004, copies of the Air  Force  evaluation  and  FBI
report were sent to the applicant for review and comment.  As of this  date,
this office has not received a 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.   After  careful  consideration  of  the
applicant’s request, we have seen no evidence indicating that the  applicant
was improperly discharged  or  that  an  upgrade  of  the  approved  service
characterization based on the evidence presented is warranted.   It  appears
that responsible officials applied appropriate standards  in  effecting  the
separation,  and  the  applicant  has  not  provided   persuasive   evidence
demonstrating that pertinent regulations were violated, he was not  afforded
all the rights to which entitled at  the  time  of  discharge  or  that  his
superiors  abused  their  discretionary  authority.   We  have   noted   the
information  provided  by  the  applicant  related  to  his   post   service
activities.  However, we do not find this  evidence  sufficient  to  warrant
favorable consideration of the applicant’s request based  on  clemency.   It
has been more than  29  years  since  the  applicant’s  discharge,  yet  the
majority of the evidence pertaining to his post service  adjustment  relates
to only the last five to ten years.  In our  view,  this  does  not  provide
adequate evidence that the applicant has and will continue to  maintain  the
standards  of  good  citizenship  over  an  extended  period  of  time.   We
therefore agree with the recommendation of the Air Force office  of  primary
responsibility and adopt their rationale as the  basis  for  our  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
Accordingly, we find no basis to recommend granting  the  relief  sought  in
this application.

_________________________________________________________________
THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented  did  not  demonstrate
the existence of probable 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 8 June 2004 under the provisions of AFI 36-2603:

           Mr. Roscoe Hinton Jr, Panel Chair
           Mr. Garry G. Sauner, Member
           Mr. Gover L. Dunn, Member

The following documentary evidence for AFBCMR  Docket  Number  04-00383  was
considered:

     Exhibit A.  DD Form 149, dated 18 Dec 03, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFPC/DPPRS, dated 7 Apr 04.
     Exhibit D.  Letter, SAF/MRBR, dated 9 Apr 04.
     Exhibit E.  Letter, AFBCMR, dated 29 Apr 04, w/FBI Report.





                                  ROSCOE HINTON JR.
                                  Panel Chair