RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02478
            INDEX CODE:  110.00
      XXXXXXX    COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: 12 FEB 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be changed
to honorable and his separation and reenlistment eligibility codes  be
changed.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He requested to be discharged with the idea that his record and  award
would have gotten him a better discharge. He knew he  would  be  found
guilty of conduct unbecoming an NCO.  In  his  package,  the  military
attorney  spoke  of  gray  areas  in  the  accuser’s  story.  She  was
discharged shortly after him.  He is currently serving overseas  under
Operation Iraqi Freedom. It has been  about  15  years  since  he  was
accused of this and is trying to move on and salvage his career

In support of his application, applicant has submitted a  copy  of  DD
Form 214, Certificate or Release or Discharge from  Active  Duty,  and
letters from his Army National Guard Commander and school principal.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic  on
8 January 1982.

On 30 October  1989,  general  court-martial  charges  were  preferred
against the applicant for trial for the following specifications:

      (1) On or about 8 April 1989, applicant willingly and wrongfully
exposed in an indecent manner to public view his pubic  hair  and  the
base of his penis.

      (2) On or about 8 April 1989, applicant orally communicated to a
female airman certain indecent language, to wit: “I want your box” and
“Are you scared to see a black man’s dick?”

      (3) On or about 11 May 1989,  applicant  committed  an  indecent
assault upon a female airman, a person not his wife,  by  raising  her
shirt and bra to expose her breasts, by sucking her breast, by  taking
her and trying to force her hand onto his penis, by  laying  her  back
and undoing her pants, by pulling her pants down, by placing his  hand
upon her vagina, by placing his fingers in her vagina, by sticking his
finger in her anus, by picking her up in his  arms  and  carrying  her
toward her bedroom, by grabbing her chin and forcing her  head  toward
his penis, and by ejaculating on her stomach, with intent  to  gratify
his sexual desires.

      (4) On or about 11 May 1989, applicant orally communicated to  a
female airman certain indecent language, to wit; “I want to  see  your
pussy”, and “You taste better than any woman”, and “I am going to make
love to you; if not today, I will get you later and  it  will  not  be
rape”, and “I want you to see me hard and feel my penis”.

On 11 January 1990, applicant requested  to  be  discharged  from  the
United States  Air  Force  in  lieu  of  trial  by  court-martial.  He
understood that if his request was approved he may be discharged  with
an under other than honorably conditions discharge.

Applicant’s commander recommended approval of his discharge in lieu of
trial by court-martial. The base legal office reviewed  the  case  and
recommended applicant’s request for discharge  in  lieu  of  trial  by
court-martial be approved.

Headquarters Twenty-Second Air Force/JA reviewed the case and found it
legally sufficient and recommended applicant’s request  for  discharge
in lieu of trial by court-martial be approved.  They  recommended  the
applicant receive an under other than honorable conditions  discharge.
The discharge authority approved the request for discharge in lieu  of
trial by court-martial and directed the applicant be  discharged  with
an under other than honorable conditions discharge.

On 31 January 1990, the applicant was separated  from  the  Air  Force
under the provisions of AFR 39-10, Administrative Separation of Airmen
(request for discharge in lieu of trial  by  court-martial),  with  an
under other than honorable conditions discharge. He served 7 years,  7
months and 23 days of total active duty.

On 18 February 1990, the applicant submitted an application to the Air
Force Discharge Review Board (AFDRB) requesting his UOTHC discharge be
upgraded to honorable. The AFDRB reviewed the evidence of  record  and
concluded the discharge was consistent with procedural and substantive
requirements of the discharge regulation and was within the discretion
of the  discharge  authority  and  the  applicant  was  provided  full
administrative due process. The AFDRB  further  concluded  that  there
existed no legal or equitable basis for upgrade and denied applicant’s
request for an honorable discharge.

On 30 August 2005, AFPC/DPPRSP corrected the applicant’s DD  Form  214
to reflect  “Continuous  honorable  active  military  service  from  8
January 1982 to 18 April 1986”.

The applicant is currently enlisted in the  California  Army  National
Guard as a specialist assigned to XXXXXXX.

Pursuant to the Board's request for  information,  the  FBI  indicated
that, on the basis of the  evidence  provided,  they  were  unable  to
locate an arrest record pertaining to the applicant (Exhibit C).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPPRS  recommends  denial  and  states  that   based   upon   the
documentation in the file,  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 new evidence or identify  any  errors
or injustices that occurred in the discharge processing.  He  provided
no facts warranting a changed to his character of service.

AFPC/DPPRS complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air  Force  evaluation  was  forwarded  to  the
applicant on 2 September 2005, for review and  comment.   As  of  this
date, no response has been received by this office.

_________________________________________________________________
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 an error or injustice.  After a  thorough  review  of
the  evidence  of  record  and  applicant’s  submission,  we  are  not
persuaded that his discharge  should  be  upgraded  or  his  narrative
reason for separation and RE code changed. Applicant’s contentions and
supporting statements were duly noted; however, we do not  find  these
assertions, in and by themselves, sufficiently persuasive to  override
the evidence of record.  Therefore, we  agree  with  the  opinion  and
recommendation of the Air Force and adopt its rationale as  the  basis
for our decision that the applicant has failed to sustain  his  burden
of having that he has suffered either an error or  injustice.  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 AFBCMR Docket Number BC-
2005-02478 in  Executive  Session  on  16  November  2005,  under  the
provisions of AFI 36-2603:

      Mr. Laurence M. Groner, Panel Chair
      Mr. Wallace F. Beard, Jr., Member
      Mr. Terry L. Scott, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 23 Jul 05, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
      Exhibit C.  FBI Report, dated 22 Sep 05
    Exhibit D.  Letter, AFPC/DPPRS, dated 24 Aug 05.
    Exhibit E.  Letter, SAF/MRBR, dated 2 Sep 05.




                                   LAURENCE M. GRONER
                                   Panel Chair