RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-00262

            COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE: 24 JUNE 2006


_________________________________________________________________

APPLICANT REQUESTS THAT:

His court-marital conviction and bad conduct discharge be  mitigated  to  an
administrative discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The convening authority should have considered him for clemency because  his
conviction for carnal knowledge would lead to him being registered  for  the
rest of his life as a dangerous sex offender.

In support of his request, applicant provided a copy of  Department  of  the
Air Force Discharge Review Board package.

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

STATEMENT OF FACTS:

Applicant enlisted in the Regular  Air  Force  on  9  August  1995  and  was
progressively promoted to the grade of airman first class.

On 26 February 1999, he was tried  by  a  special  court-martial  for  three
specifications:

      1. On divers occasions between on or about  8  July  1998  and  on  or
about 9 July 1998, committed the offense of carnal knowledge with  a  female
in violation of the Uniform Code of Military Justice, Article 120.

      2. On divers occasions between on or about  8  July  1998  and  on  or
about 9 July 1998,commit sodomy with a female, a child under the age  of  16
years in violation of the Uniform Code of Military Justice, Article 125.

      3. A married man, on divers’ occasions between on or about     8  July
1998 and on or about 8 July 1998, wrongfully had sexual intercourse  with  a
female not his wife in violation of the Uniform Code  of  Military  Justice,
Article 134.

The sentence was adjudged by officer and enlisted members on    26  February
1999, with a bad conduct discharge, confinement for 6 months, forfeiture  of
$638.00 pay per month for 6 months and reduction to airman basic.

On 18 September 2000, the sentence to a bad conduct  discharge,  confinement
for 6 months,  forfeiture  of  $638.00  pay  per  month  for  6  months  and
reduction to airman  basic  was  affirmed  by  Special  Court-Martial  Order
Number 7.

On 7 December 2004, the Air Force Discharge Review  Board  (AFDRB)  reviewed
the applicant’s  request  for  discharge  upgrade  and  concluded  that  the
applicant’s punitive discharge  by  special  court-martial  was  appropriate
under the facts and circumstances of the case  and  there  was  insufficient
basis, as an act of clemency, for a change of his discharge.

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS recommended denial and stated,  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 also within the discretion of the discharge authority.

AFPC/DPPRS complete evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reviewed the Air Force evaluation and  stated  that  the  February
1999 conviction by special court-martial was  not  authorized  to  impose  a
felony  conviction  until  three  years  later  with  the  promulgation   of
Executive Order 13262, April 11, 2002. Although he was not  convicted  of  a
felony, the statute uses elements of an offense test.  The Texas  Department
of Public Safety has characterized his conviction  as  a  “sexually  violent
offense” because his sexual female partner was under  the  age  of  17.   He
knows that this doesn’t change what happen and is not relevant in his  case,
but it is the reason why he needs this to be over-turned. He has  tried  his
best to move on and put this behind him but in  June  2002,  he  received  a
letter from the police saying that he had to register as a sex offender  and
because of the charges that were from  the  military,  he  has  to  register
every three years for the rest of his life.  He was 22  when  this  incident
occurred.  Ms. Anderson did not wish this to happen to him, and she wrote  a
letter stating that.  He has since lost his job and has  been  evicted  from
his apartment complex. He knows what happen was wrong and he is  very  sorry
but he just did not think it is worth a life sentence.  Meanwhile,  his  co-
defendant who lives in Ohio only had to register once  a  year.   He  really
feels like a fool.  He never knew what  kind  of  trouble  the  co-defendant
really was until he was charged  and  he  started  to  hear  all  these  bad
things. So he never had any reason not to trust him  or  believe  him  until
after the fact.  He has learned a lot from this  because  he  really  didn’t
trust anyone.  He does not have  any  type  of  relationship  with  the  co-
defendant.  He can’t believe people who  say  that  they  are  your  friends
would put him in that kind of position. All he asks is for a  second  chance
on life and to be given fair and equal punishment as his  co-defendant.   He
can’t find a job or a place to live because of this.  So, he asks the  Board
to remove this from his records.

Applicant’s complete 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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the case.   However,  we  agree
with the opinion and recommendation of  the  Air  Force  office  of  primary
responsibility and adopt its rationale as the basis for our conclusion  that
he has not been the victim of an error or injustice. 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-2005-00262
in Executive Session on 24 May 2005, under the provisions of AFI 36-2603:

                       Ms. Marilyn M. Thomas, Vice Chair
                       Mr. Michael V. Barbino, Member
                       Ms. Jan Mulligan, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 17 Jan 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPPRS, dated 3 Mar 05.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Mar 05.
      Exhibit E.  Applicant’s Response, dated 2 Apr 05, w/atchs.




                                   MARILYN M. THOMAS
                                   Vice Chair