RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-00891
                             INDEX CODE:  110.00

            COUNSEL: None

                             HEARING DESIRED: No

MANDATORY CASE COMPLETION DATE:  4 OCT 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct  discharge  (BCD)  be  upgraded  to  a  general  or  a
honorable discharge.
_________________________________________________________________

APPLICANT CONTENDS THAT:

Due to the fact that all the acts he was charged with were consensual,
he believes the BCD was too harsh.

In  support  of  his  request,  applicant  provided  a  DD  Form  293,
Application for the Review of Discharge or Dismissal  from  the  Armed
Forces of the United States.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force (RegAF) on 9 August  1995,
as an airman basic (AB) for a period of four (4) years.

Per General Court-Martial Order No.  52  dated  17  August  1996,  the
applicant  was  tried  by  general  court-martial  for  on  or   about
3 November 1995 attempted  to  commit  sodomy  by  force  and  without
consent, rape, and indecent assault.  The applicant pled not guilty to
all charges.  He was found guilty of attempted sodomy, not  guilty  of
rape and not guilty of indecent assault, but guilty of lesser included
offense of committing indecent acts.  He was sentenced to  a  BCD  and
two years confinement.  The BCD and confinement  for  15  months  were
approved.

The United States Air Force Court of Criminal Appeals (AFCCA) reviewed
the applicant’s conviction and on 28 May 1997, the court affirmed  the
conviction and sentence.  The applicant petitioned the  United  States
Court of Appeals for the Armed Forces for review and on 10 March 1998,
they affirmed the AFCCA findings and ordered any forfeitures collected
from the applicant be restored as they were without legal affect.

Applicant was discharged from the RegAF  on  12 August  1998,  in  the
grade of airman basic, under the provisions of  General  Court-Martial
Order No. 153, and was furnished a  bad  conduct  discharge.   He  had
completed 2 years and 23 days of  active  duty  service.   He  had  11
months and 9 days of lost time.

Pursuant to the Board’s request, the Federal Bureau of  Investigation,
Washington, D.C., provided an investigative report which  is  attached
at Exhibit C.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends the requested relief be denied.  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’s request comes seven  and  one-half  years
after his discharge.  He has not identified an error or  injustice  in
the processing of his discharge.

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).

They further state that there is no  legal  basis  for  upgrading  the
applicant’s discharge.  His sentence was within the prescribed  limits
and was a matter within the discretion of the court-martial and  could
have been mitigated by the convening authority or during the course of
the  appellate  review.   The  applicant  was  afforded   all   rights
guaranteed by statute and regulation.  He has provided  no  compelling
basis based on the circumstances of his  case  that  would  warrant  a
change in his discharge.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the  applicant  on
28 April 2006, for review and response.  As of this date, no  response
has been received by this office.

On 1 June 2006, the Board staff forwarded the applicant a copy of  the
FBI report for his review and response.  No response has been received
(Exhibit G).

_________________________________________________________________

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  the  applicant’s
bad conduct discharge as a result of his conviction by general  court-
martial was erroneous or unjust.  Therefore, we are in agreement  with
the assessment of the  Air  Force  office  of  primary  responsibility
concerning the sentence in  this  case.   While  we  would  ordinarily
review a case for clemency, we note the absence  of  evidence  by  the
applicant attesting to  a  successful  transition  to  civilian  life.
Therefore, we are not persuaded to extend clemency in this  case.   In
view of the foregoing, we conclude that no basis exists  to  recommend
granting the requested relief.

_________________________________________________________________

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 22 June 2006 under the provisions of AFI 36-2603:

                                  Mr. Thomas S. Markiewicz, Chair
                                  Ms. Glenda H. Scheiner, Member
                                  Mr. Alan A. Blomgren, Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2006-00891 was considered:

      Exhibit A. DD Form 149, dated 27 Mar 06, w/atchs.
      Exhibit B. Master Personnel Records.
      Exhibit C. FBI Report.
      Exhibit D. Letter, AFLOA/JAJM, dated 18 Apr 06.
      Exhibit E. Letter, SAF/MRBR, dated 28 Apr 06.




                                        THOMAS S. MARKIEWICZ
                                        Chair