RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01160
            INDEX CODE: 110.02
      XXXXXXX    COUNSEL:  NONE

            HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  20 Oct 2007


___________________________________________________________________

APPLICANT REQUESTS THAT:

His Dishonorable Discharge be upgraded to a discharge that would  qualify
him for Veterans Affairs (VA) benefits.

___________________________________________________________________

APPLICANT CONTENDS THAT:

He served honorably and with distinction during four  enlistments.  After
getting in trouble, he served 16 years in  Leavenworth  without  incident
and earned the right as a trustee.

The applicant's complete submission is at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic on  17
December 1973 and was  progressively  promoted  to  the  grade  of  staff
sergeant. He was court-martialed 30 November 1988.  He was  charged  with
two specifications of sodomy of a child under 16 years of age with  force
and without consent, in violation of Article 125, UCMJ: and in  violation
of Article 134, UCMJ, with a specification of indecent acts upon the body
of a female under the age of 16 and  with  a  specification  of  indecent
liberties with a female under the age of 16. The victim was  his  natural
daughter. Pursuant to his pleas, he was found guilty of the  charges  and
specifications. The sentence included a reduction to airman first  class,
Dishonorable Discharge and  confinement  for  40  years.   The  court  of
Military Review reduced the sentence term of confinement to 30 years  and
affirmed the remainder.  On further  appeal  to  the  Court  of  Military
Appeals, on 11 April 1991, the Court affirmed the  lower  court  actions.
The  Dishonorable  Discharge  was  executed  on  17 December 1991.    The
applicant was credited with 19 years,  2 month,  and  21 days  of  active
service (excluding time lost during the period of 30 Nov  88  through  18
Sep 90).

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

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.   Under  10  USC,  section  1552(f),  which
amended the basic corrections 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 imitated exceptions, the effect
of Section 1552(f) is that the AFBCMR is without  authority  to  reverse,
set aside, or otherwise expunge a court-martial conviction that  occurred
on or after 5 May 1950.

AFLOA/JAJM further states  the  applicant  has  identified  no  error  or
injustice related to his prosecution or sentence.  While clemency  is  an
option, there is no reason for the Board to  exercise  clemency  in  this
case.  The applicant presents insufficient evidence to warrant  upgrading
his discharge characterization, and does  not  demonstrate  an  equitable
basis for relief.

The AFLO/JAJM evaluation is at Exhibit D.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 30
June 2006 for review and comment within 30 days.  As of this date, this
office has received no response (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.  The  evidence  of
record reflects the applicant was convicted by general court-martial  for
two specifications of sodomy of a child under 16 years of age with  force
and without consent; with one specification of  indecent  acts  upon  the
body of a female under the age of  16,  and  with  one  specification  of
indecent liberties with a female under the  age  of  16  resulting  in  a
dishonorable discharge.  No evidence has been presented which would  lead
us to believe that the applicant’s service characterization was improper.
 The Board noted the applicant’s  prior  honorable  periods  of  service.
Nonetheless, in view of the seriousness of the offenses committed  during
the period of service under review, we are not persuaded that an  upgrade
of the characterization of his discharge is warranted based on  clemency.
Therefore, in the absence of persuasive  evidence  to  the  contrary,  we
adopt the Air Force Legal Operations Agency’s rationale as the basis  for
our conclusion that the applicant has not been the victim of an error  or
injustice and conclude that no basis exists  to  recommend  granting  the
relief sought in 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-2006-
01160 in Executive Session on 15 August 2006, under the provisions of AFI
36-2603:

      Mr. Richard A. Peterson, Panel Chair
      Ms. LeLoy W. Cottrell, Member
      Ms. Karen A. Holloman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 25 Apr 06.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLOA/JAJM, dated 20 Jun 06.
    Exhibit D.  Letter, SAF/MRBR, dated 30 Jun 06.




                                   RICHARD A. PETERSON
                                   Panel Chair