RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-03700
            INDEX CODE: 105.01, 106.00
            COUNSEL:  None

            HEARING DESIRED:  No

MANDATORY CASE COMPLETION DATE:  7 Jun 06

_________________________________________________________________

APPLICANT REQUESTS THAT:

His 1994 dishonorable discharge be upgraded to general.

[Note:  Under  Title  10,  USC,  Section  1552(f),  the  Board  cannot
reverse, set aside, or otherwise expunge  a  court-martial  conviction
that occurred on or after 5 May 50; only the punishment may be changed
for the purpose of clemency.]

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge was inequitable and based on  an  isolated  incident  in
otherwise exemplary 16½  years  of  service.   The  incident  was  not
related to the Air Force or his career.  Security was  never  breached
or in jeopardy.

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


_________________________________________________________________

STATEMENT OF FACTS:

The following information was extracted from the applicant’s  military
personnel records and the Air Force Office  of  Special  Investigation
(AFOSI) Reports of Inquiry (ROI) dated 28 Jul and 18 Sep 89.

The applicant enlisted in the Regular Air Force on 14 May 84  and  was
sequentially promoted to the grade of technical sergeant (TSgt) with a
date of rank of 1 Nov 86.  His performance  reports  are  provided  at
Exhibit B.

During the period in question, the applicant  was  a  systems  control
shift supervisor assigned to the 2184th Communications Squadron  (2184
CS) at Hahn AB, Germany.

The applicant’s then 12-year old daughter (A--) had been  living  with
her natural mother in Oregon but was taken  from  the  home  by  local
social services due to alleged sexual abuse by  the  stepfather.   The
allegation was never substantiated,  but  social  services  would  not
allow A-- back in the home unless the stepfather  left.   The  natural
mother would not leave the stepfather.  As a result,  A--  joined  her
father and his family at Hahn AB around Nov 87.  The applicant and his
family  underwent  family  counseling  for  marital  difficulties  and
behavioral problems with the stepmother and children adapting to A--’s
presence in their home.  A-- seemed to blame the  stepmother  for  the
breakup  of  her  parents’  marriage.   Counselors  had  advised   the
applicant his daughter’s recent depression and  school  problems  were
probably due to the reality of the previous  abuse  setting  in.   The
applicant apparently indicated he did not believe the  previous  abuse
occurred.  However, A-- subsequently told her  high  school  counselor
that the applicant had molested her and she suspected  he  might  have
also molested her 4-year old stepsister (S--).  Subsequent  to  rights
advisement, the applicant provided a  signed,  sworn  statement.   The
applicant confirmed his  daughter’s  allegations,  explaining  he  was
trying to bring her to orgasm so that she would know sex was not “one-
sided”  as  it  had  been  with  her  stepfather.   A  search  of  the
applicant’s home disclosed pornographic videos showing adults  playing
the roles of children having sex with adults.  The applicant’s  8-year
old son testified the applicant played pornographic movies for him and
his brother.

On 15 Nov 89, the applicant was tried before a  general  court-martial
at Hahn AB for rape and carnal knowledge in violation of Article  120,
Uniform Code of  Military  Justice  (UCMJ),  sodomy  in  violation  of
Article 125, two specifications of indecent acts  with  a  child  (his
daughter A--) under 16 years of age and one  specification  of  taking
indecent liberties with a female under 16 years of age (his daughter A-
-) in violation of Article 134.  His criminal activity  occurred  from
at least Jan 88 until Jun 89 on various occasions. On 17 Nov  89,  the
applicant was found guilty of all charges except rape and sentenced to
a dishonorable discharge, confinement for 10 years, and  reduction  to
airman basic.

On  1 Feb  94,  the  applicant  was  released  from   confinement   at
Ft. Leavenworth, KS, and placed on commandant’s  parole.   By  General
Court-Martial Order, dated 20 Nov 94, the dishonorable  discharge  was
ordered executed.

On 15 Dec 94, the applicant was dishonorably discharged in  the  grade
of airman basic with honorable active military service from 15 May  74
to 14 May 84, lost time from 17 Nov 89 through 13 Sep  90,  and  1,552
days of non-pay status from 14 Sep 90 through 15 Dec 94.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM notes that  although  the  applicant  claims  this  was  an
isolated incident, he took sexual liberties with his own daughter  for
at least a one-year period.   The  dishonorable  discharge  accurately
reflects the  character  of  his  service--he  did  not  complete  his
enlistment honorably.   The  maximum  punishment  authorized  for  the
offenses for which the applicant  was  convicted  was  a  dishonorable
discharge, confinement  for  61  years,  forfeiture  of  all  pay  and
allowances, and reduction to airman  basic.   His  sentence  was  well
within the legal limits and a  fitting  punishment  for  the  offenses
committed.  Any decision regarding the  applicant’s  discharge  status
would be done as a matter of clemency, which  is  not  warranted.   To
classify the applicant’s service as honorable would be to put  him  on
an equal footing with the thousands of armed forces  who  have  served
honorably.  The applicant  does  not  dispute  the  findings  that  he
committed the horrendous acts with his daughter but tries to  minimize
by describing his misconduct  as  an  isolated  incident.   Denial  is
recommended.

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends his use of the phrase “isolated incident” meant
the court-martial itself, which was not  due  to  a  security  breach,
conspiracy, espionage, or any other military type of  infraction.   He
had an exemplary and  commendable  service  record  and  the  military
discharge should not have been based solely on the court-martial.   He
merely asks for a general, not an honorable, discharge.   He  did  not
dispute the findings of guilt of the court-martial in his  application
because he assumed this was a  moot  point.   However,  his  affidavit
pleads his case.  His daughter was six when he and his wife separated,
with custody of the children going to her.  He remarried  and  started
another family.  His ex-wife gave him custody of  his  daughter  after
the girl made allegations of sexual abuse by  the  stepfather.   After
being with him for a year  and  a  half,  his  daughter  began  making
similar  allegations  against  him.   His  daughter,  then   12,   had
experienced difficulties adjusting to her  new  environment  and  felt
like an outcast in his new family.  His  new  wife  resented  the  new
arrangement.  He claims the reason his and his  daughter’s  statements
to the OSI were virtually identical is because he “just tried to write
down all that the detective told [the applicant] that  [his  daughter]
alleged, even adding [his] own to give  it  substance,  make  it  more
believable.”  He wanted to show his daughter he would not abandon her.
 His daughter’s attempts to recant her statements  were  thwarted  and
she refused to testify for the prosecution.  This was a stupid move on
his part as it ruined his career and his life.

A complete copy  of  applicant’s  response,  with  attachment,  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.  After a thorough review  of  the
evidence  of  record  and  the  applicant’s  submission,  we  are  not
persuaded his dishonorable discharge should be upgraded on  the  basis
of either error or clemency.  The applicant has submitted no  evidence
demonstrating his general court-martial was unwarranted, his  sentence
was  not  well  within  the  legal  limits,  or  his   discharge   was
inequitable.  We find his arguments that his egregious behavior was an
isolated incident having no bearing on his Air Force career, and  that
he was attempting to help his young  daughter,  specious  and  without
merit.  Characterizing his service as under honorable conditions would
constitute an injustice to those members who did serve honorably.   We
therefore agree with the recommendations of AFLSA/JAJM and  adopt  the
rationale expressed as the basis for our decision that  the  applicant
has not sustained his burden of having suffered either an error or  an
injustice.  In view of the above,  we  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 8 June 2005 under the provisions of AFI 36-2603:

                 Mr. Michael K. Gallogly, Panel Chair
                 Ms. Dorothy P. Loeb, Member
                 Mr. Clarence D. Long III, Member

The following documentary evidence relating to AFBCMR Docket Number BC-
2004-03700 was considered:

   Exhibit A.  DD Form 149, dated 14 Dec 04, w/atch.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 6 Apr 05.
   Exhibit D.  Letter, SAF/MRBR, dated 15 Apr 05.
   Exhibit E.  Letter, Applicant, dated 5 May 05, w/atch.




                                   MICHAEL K. GALLOGLY
                                   Panel Chair