RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02119
                             INDEX CODE:  110.00

                             COUNSEL: NONE

                             HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE:  9 JAN 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His discharge be upgraded.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was, pursuant to a general court-martial, dismissed  from  the  Air
Force in 1989 for fraternization with several enlisted servicemembers.
 He was terminated from his  civilian  employment  in  2004  after  he
completed the Bureau of Alcohol, Tobacco, Firearms and Explosives, ATF
Form 5400.28, Employee Possessor Questionnaire and  revealed  that  he
was dishonorably discharged from the Armed Forces.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Air Force  Reserves  (AFRes)  on  19 January
1966.  He was discharged on 14 July 1967 to accept a commission in the
AFRes.  On 15 August 1967, the applicant entered extended active  duty
in  the  grade  of  second  lieutenant  (2Lt).   He  was  subsequently
appointed in the Regular  Air  Force  (RegAF)  and  was  progressively
promoted to the rank of lieutenant colonel (Lt Col).

On 26 August 1987, charges were preferred against the applicant  under
Article  133  for  six  specifications   of   conduct   unbecoming   a
commissioned officer as follows:

Charge I.
      Specification 1.  On divers occasions on  or  about  1 September
1986 and on or about 3 August 1987,  wrongfully  fraternized  with  an
enlisted member of his command on terms of military equality.

      Specification 2.  On divers occasions on or about 1 January 1986
and on or about 24 July 1987, wrongfully fraternized with an  enlisted
member of his command on terms of military equality.

      Specification 3.  On or  about  10  September  1986,  wrongfully
fraternized with an  enlisted  member  of  his  command  on  terms  of
military equality.

      Specification 4.  On or about 23 January 1987,  unlawfully  held
by the shoulder and kissed a female employee.

      Specification 5.  Did at  sometime  during  April  1987,  commit
sodomy with an enlisted member of his command.

      Specification 6.  On or about 1 August 1986 to on  or  about  10
September 1986, use his position  of  command  to  cause  an  enlisted
member of his command to travel on official temporary  duty  (TDY)  to
attend Non-commissioned Officer (NCO) Academy Graduation when the true
purpose of the trip was to  pursue  a  sexual  relationship  with  the
female enlisted member.

The applicant tendered a resignation in lieu of trial.  On 27 November
1987,  the  Secretary  of  the  Air  Force  declined  to  accept   the
applicant’s resignation in lieu of trial.

The applicant was tried by general  court-martial  before  a  military
judge sitting alone from 9 through 11 December 1987.  He  pled  guilty
to Specifications 1, 2, and 3, and not guilty to Specifications 4,  5,
and 6.  On 11  December  1987,  the  applicant  was  found  guilty  of
Specifications 1, 2, 3, and 5, and not guilty on Specifications 4  and
6.  It appears from the Record of Trial, the  applicant  indicated  he
wanted his counsel to argue for  a  punitive  separation  in  lieu  of
confinement or other punishments.  He was sentenced per General Court-
Martial Order No. 51 to a dismissal, forfeiture of $2,000.00 of pay  a
month for 10 months and a reprimand.

On 18 February 1988, the applicant submitted an application to  retire
in lieu of dismissal.

A legal review  was  conducted  in  which  the  staff  judge  advocate
recommended the applicant’s sentence be approved  and  the  record  of
trial (ROT) be forwarded to the Secretary of the Air Force.

On 23 February 1988, the convening authority approved the sentence per
General Court-Martial Order No. 51, dated 23 February 1988.

On 23 May 1988, it was recommended that  the  applicant’s  application
for retirement in lieu of dismissal be denied.

On 6  July  1988,  the  applicant’s  application  for  retirement  was
forwarded to the Secretary of the Air Force Personnel Council.

On 8 July 1988, the Air Force Court of Military  Review  affirmed  the
findings of guilt and the sentence.

On 12 September 1988, the Principal Deputy Assistant Secretary of  the
Air  Force  for  Manpower  and  Reserve  Affairs  concurred  with  the
Personnel Council that the applicant should not be retired.

The applicant petitioned the United States Court of  Military  Appeals
and the court denied the petition on 9 January 1989.

On 7 July 1989, per General Court-Martial Order No 33,  the  Secretary
of the Air Force approved the sentence and ordered  the  execution  of
the dismissal.

On 21 July 1989, the applicant was dismissed from the  Air  Force  per
General Court-Martial Order No. 33, for  conviction  by  court-martial
(other than desertion).  He served 21 years, 11 months and 7  days  of
active service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM states an application must  be  filed  within  three  years
after the error or injustice was discovered, or, with  due  diligence,
should have been discovered.  An application  may  be  denied  on  the
basis of being untimely; however, an untimely filing may be excused in
the interest of justice.  The applicant believes the  untimely  filing
of his request should be waived because the legislation which resulted
in his termination (from his civilian job)  in  2004  was  not  passed
until after 9/11.

The  applicant  requested  at  his  sentencing  in  1987,  a  punitive
discharge as an alternative to confinement, with  the  full  awareness
that a  punitive  discharge  would  likely  preclude  employment  with
government agencies and some unions or colleges.   The  ROT  indicates
the applicant acknowledged the consequences of a  punitive  discharge.
While it is true that post-9/11  legislation  may  have  enlarged  his
employment difficulties beyond what he may have  comprehended  at  his
sentencing, he assumed the risk of future employment  difficulties  to
avoid confinement.

Under 10 USC Section 1552(f), which amended the basic correction board
legislation, the AFBCMR’s ability to correct records related to courts-
martial is limited.   Specifically,  Section  1552(f)(1)  permits  the
correction  of  a  record  to  reflect  actions  taken  by   reviewing
authorities  under  the  Uniform  Code  of  Military  Justice  (UCMJ).
Additionally, Section 1552(f)(2) permits  the  correction  of  records
related to action on the sentence of courts-martial for the purpose of
clemency.  Apart from these two  limited  exceptions,  the  effect  of
Section 1552(f) is that AFBCMR is without authority  to  reverse,  set
aside, or otherwise expunge a court-martial conviction  that  occurred
on or after 5 May 1950 (the effective date of the UMCJ).

AFLSA/JAJM further states that while clemency is an option,  there  is
no reason for the Board to exercise clemency in the applicant’s  case.
His punitive  discharge  accurately  reflects  the  character  of  his
service.  The applicant  has  not  presented  sufficient  evidence  to
warrant upgrading his  discharge  and  therefore  they  recommend  the
requested relief be denied.

A complete copy of the evaluation is attached at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 9
September 2005, for review and response.  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 an injustice.  After thoroughly reviewing
the evidence  of  record,  we  find  no  evidence  to  show  that  the
applicant’s dismissal as a result of his conviction  by  court-martial
was erroneous or unjust.  In this respect, the applicant  requested  a
punitive discharge in lieu of confinement even  though  he  was  fully
advised at the sentencing that a punitive discharge may  preclude  him
from future employment opportunities.  Regardless, he  opted  for  the
punitive discharge in lieu of  confinement.   The  applicant  has  not
submitted persuasive evidence that his  discharge  doesn’t  accurately
reflect the  character  of  his  service.   Further,  it  appears  the
discharge was well within the legal limits.  Therefore, we agree  with
the opinion  and  recommendation  of  the  Air  Force  and  adopt  its
rationale as the basis for our conclusion that the applicant  has  not
been the victim of either an error or an injustice.  It is unfortunate
if, as applicant alleges,  legislation  enacted  after  September  11,
2001, may have impacted the applicant’s employment opportunities, with
regard  to  the  role  of  a  security  clearance.   However,  if  the
legislation to which the applicant refers is 10 USC Section 986,  that
provision appears  to  contain  authority  to  waive  the  prohibition
against providing a security clearance in  appropriate  circumstances.
Applicant may wish to seek the  exercise  of  that  waiver  authority.
However, in the absence of  evidence  to  the  contrary,  we  find  no
compelling basis to recommend  granting  the  relief  sought  in  this
application.

4.    The applicant's case is adequately documented  and  it  has  not
been shown that a personal appearance with  or  without  counsel  will
materially  add  to  our  understanding  of  the  issue(s)   involved.
Therefore, the request for a hearing is not favorably considered.

_________________________________________________________________

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-
2005-02119 in Executive Session 12 January 2006  and  6 February  2006
under the provisions of AFI 36-2603:

                             Mr. Laurence M. Groner, Panel Chair
                             Ms. LeLoy W. Cottrell, Member
                             Ms. Cheryl V. Jacobson, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 15 Jun 05, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 30 Aug 05.
   Exhibit D.  Letter, SAF/MRBR, dated 9 Sep 05.




                                        LAURENCE M. GRONER
                                        Panel Chair