RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03478

      XXXXXXX    COUNSEL:  JOSE A. RODRIGUEZ

      XXXXXXX    HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  13 MAY 06


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to honorable.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The alleged victim  retracted  her  statements  against  him  shortly  after
making them.  The falsified statements were the  sole  basis  for  the  case
against him. His fear of the consequences should he go to  trial  and  lose,
led to his plea agreement and the subsequent sentence.

In support of his appeal, the applicant submits a letter from  his  counsel,
an affidavit from the victim, a letter of support  from  his  employer,  and
performance summaries.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force  on  23  October  1985  and  was
progressively promoted to the grade of staff sergeant.

On 13 March 2000, the applicant was charged with one specification  of  anal
sodomy with a child under the age  of  16  and  one  specification  of  oral
sodomy with a child under the age of 16, in violation of Article 125 of  the
UCMJ; and one specification of indecent acts with a female  under  16  years
of age, in violation of Article 134 of the UCMJ. At the  court-martial,  the
applicant was tried before judge alone. The applicant  pled  guilty  to  the
one specification of indecent acts on a female under 16 years  of  age,  and
pled not guilty to the specifications of anal and oral sodomy. He was  found
guilty of the specification of indecent acts, and found not  guilty  of  the
sodomy specifications.  On 13 March 2000, the applicant was sentenced  to  a
bad conduct discharge, confinement for 24 months, forfeiture of all pay  and
allowances, and reduction to airman basic (E-1). Confinement was limited  by
a pretrial agreement to 18 months. On 9 April 2000 the  convening  authority
approved the sentence but elected to waive $303.00  pay  per  month  of  the
required forfeiture of all pay and for six months.

Because his approved sentence included a bad conduct discharge,  the  United
States  Air  Force  Court  of  Criminal  Appeals  reviewed  the  applicant’s
convictions.  On 25 April 2001, it affirmed the findings of guilty  and  the
sentence.  The applicant petitioned the United States Court of  Appeals  for
the Armed Forces for review.  The applicant’s subsequent motion to  withdraw
his petition for grant of review was granted on 20 August 2001.

On  10  September  2001  the  convening  authority  ordered  the   applicant
separated with a bad conduct discharge after 15 years and 6  days  of  total
active military service.

_________________________________________________________________

AIR FORCE EVALUATION:

ALSA/JAJM  recommended  denial  and  stated  that  there  is  no  basis  for
upgrading the applicant’s discharge. The appropriateness of the  applicant’s
sentence, within the prescribed limits, is a matter  within  the  discretion
of the court-martial and may be mitigated  by  the  convening  authority  or
within the course of the appellate review process.  The  applicant  had  the
assistance of counsel in presenting extenuating and  mitigating  matters  in
their most favorable light to the court and the convening authority.   These
matters were considered in review of the sentence. The  applicant  was  thus
afforded all rights granted by statute and regulation.

The  applicant  has  identified  no  error  or  injustice  related  to   his
prosecution or the sentence. Because  the  applicant  presents  insufficient
evidence to  warrant  upgrading  the  discharge,  does  not  demonstrate  an
equitable basis for relief, and because the requested relief, an upgrade  in
discharge characterization, is inappropriate given the  seriousness  of  the
applicant’s crimes.

ALSA/JAJM complete evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant’s counselor reviewed the Air Force Evaluation and stated  that  in
ALSA/JAJM’s memorandum, it stated that the applicant’s application was  made
in an untimely manner, prior to the most recent application; his office  has
submitted applications on behalf of the applicant in order  to  clarify  the
injustice that has occurred with this matter.   Enclosed  with  this  letter
are copies of previous applications that the applicant has submitted to  the
Air Force.  The applicant and counselor have either received no response  to
these applications, or his office was notified  that  they  were  improperly
submitted for the type of relief that they were seeking.  Attorneys  at  our
office have also spoken of  individuals  at  Randolph  Air  Force  Base  and
Andrews Air Force Base in order to clarify the correct process of  obtaining
relief that they were seeking.  At no time was a client  or  counselor  ever
notified of the correct process that is required  by  the  Air  Force  until
they received the enclosed letter  dated  November  9,  2004.   There,  they
believe  that  the   applicant’s   application   should   be   taken   under
consideration because his initial application was submitted within the  time
allotted for n  application  to  be  considered  for  review.  Although  the
injustice of having the  applicant  convicted  of  this  crime  has  already
occurred and cannot be reversed, it would be a grave injustice  to  continue
punishing the applicant for a crime that he was falsely accused  of  because
of  a  child’s  inability  to  determine  the   seriousness   and   in   the
repercussions of her false accusations.

As a result of his stepdaughter’s immature means of dealing the  applicant’s
discipline, he now has to register as sex  offender  for  the  rest  of  his
life. Understanding that by taking the plea those  were  circumstances  that
he had to face, but the applicant is not asking for the Board to  erase  the
injustice that has occurred in the past, but pleads to  the  Board  to  give
him an opportunity to look forward to  the  future.  The  applicant  is  now
married, starting a new  family,  and  by  upgrading  his  discharge  to  an
honorable status will give the applicant an opportunity to better his  life,
not only himself but also for his family.

Applicant’s Counselor complete response is at Exhibit E.

_________________________________________________________________


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.   We  took  notice  of  the  applicant's
complete submission in judging the  merits  of  the  case.   However,  after
thorough review of the evidence of  record,  it  is  our  opinion  that  the
comments of the office of the Judge Advocate General are  supported  by  the
evidence of record.  We find no evidence of error in  this  case  and  after
thoroughly reviewing the applicant's submission, we do not  believe  he  has
suffered from an injustice.  We considered upgrading his  discharge  on  the
basis of clemency; however, due  to  the  serious  nature  of  the  offenses
committed, in the short period of time in which he served, we  believe  that
the characterization of his discharge was proper and in compliance with  the
appropriate directives.  In  the  absence  of  persuasive  evidence  to  the
contrary,  we  find  no  basis  upon  which  to  favorably   consider   this
application.

_________________________________________________________________

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  Docket  Number  BC-2004-03478
in Executive Session on 26 April and 12 May 2005, under  the  provisions  of
AFI 36-2603:

                       Ms. B.J. White-Olson, Panel Chair
                       Ms. Janet I. Hassan, Member
                       Mr. Grover L. Dunn, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 16 Nov 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 28 Feb 05.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Mar 05.
    Exhibit E.  Applicant’s Counselor Response, dated 29 Apr 05.




                                   B.J. WHITE-OLSON
                                   Panel Chair