RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-03565
            INDEX CODE:  110.02
            COUNSEL:  NOT INDICATED

            HEARING DESIRED:  YES


MANDATORY CASE COMPLETION DATE:  22 MAY 2008


_________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be changed to an  honorable  discharge
with retirement or his rank of staff sergeant (E-5) be reinstated.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Evidence was not presented in court to prove his innocence because the
Government confiscated his instructor materials, manuals,  and  lesson
plans which show that the search techniques he used on  students  were
correct.  A letter he supposedly  wrote  was  actually  written  by  a
student.  He believes his reenlistment eligibility of 2M qualifies him
to reenlist at his original rank.  He would  like  to  become  an  FBI
agent and his BCD is preventing this.

In  support  of  his  request,  the  applicant  provided  a   personal
statement, copy of his DD Form 214, Armed Forces of the United  States
Report of Transfer or  Discharge  from  Active  Duty,  AF  Form  1160,
Military Retirement Actions,  a  Character  Statement,  a  copy  of  a
personal letter, a copy of case number 02-0237, excerpts from training
manuals and excerpts from his military personnel records.

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
3 June 1983 for a term of 4 years.  He was progressively  promoted  to
the rank of staff sergeant.  On 11 February 2000, he was convicted  by
a Special Court-Martial of wrongfully making  sexual  advances  toward
and attempting to develop a personal relationship with a trainee,  and
of maltreatment of two trainees by wrongfully touching their  breasts,
buttocks, and vaginal areas with his hands over  their  clothing.   He
was sentenced to reduction in rank from staff sergeant to airman basic
and a BCD.  The convening authority approved the findings and sentence
and the applicant was placed on excess  leave  pending  completion  of
appellate review of his conviction.

The United States Air Force Court of  Criminal  Appeals  affirmed  the
findings and sentence on 25 October 2001.  He further appealed to  the
United States Court of Appeals for the Armed Forces who  affirmed  the
decision of the USAFCCA ON 21 March 2003.  He was  given  90  days  to
appeal the decision to the United States  Supreme  Court  and,  during
this period, he attained 20 years of  total  active  federal  military
service on 2 June 2003.  On 30 June 2003 he requested to  retire,  and
on 28 June 2004, AETC legal office reviewed the case  and  recommended
applicant’s retirement application be denied.  On  15  June  2004,  HQ
Second Air Force legal office reviewed the case  and  recommended  his
retirement application is denied. On 7 May 2004, the base legal office
reviewed the case and recommended his retirement application be denied
and he be discharged with a BCD.  On 13 September 2004, the  Secretary
of the Air Force disapproved his application for retirement.   Special
Court-Martial Order Number 3,  dated  1 November  2004,  affirmed  the
sentence to a BCD and reduction to the grade of airman basic.

He was discharged on 26 July 2005, with a  BCD  as  his  character  of
service due to court-martial.

He served a total of 22  years,  1  month  and  24  days  active  duty
service.

_________________________________________________________________

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  also  within  the  discretion  of  the  discharge
authority.

The complete evaluation is at Exhibit C.

AFPC/DPPRRP recommends denial.  The applicant has failed  to  identify
any additional facts or circumstances indicating  he  is  entitled  to
retirement under 10 USC 8914.  He was provided with avenues to  appeal
his SPCMO  and  to  provide  additional  evidence  during  the  appeal
process.  He therefore, was awarded all rights granted by statute  and
regulation.  The 13 September 2004 denial of his retirement was within
the discretion of the Secretary of the Air Force.

The complete evaluation, with attachments, is at Exhibit D.

AFPC/DPPPWB does not provide a recommendation.  There is no  promotion
issue associated with the case;  however,  if  the  Board  grants  his
request, his date of rank to staff sergeant was 1 September 1991.

The complete evaluation is at Exhibit E.

AFPC/JA recommends denial and states his application  was  not  timely
filed and should be denied on that basis alone.  He claims that he did
not have the necessary evidence to file his appeal to  the  Air  Force
Board for Correction of Military Records  (AFBCMR),  because  it  took
numerous efforts by his congressman and his staff for the new evidence
to be discovered.  Although it is  unclear  from  applicant’s  appeal,
this newly discovered evidence apparently consists of pages  extracted
from  Air  Force  Manual  10-100,  Airman’s  Manual,  and   two   Army
publications, Army Field Manual 7-8, Infantry Rifle Platoon and Squad,
and Army Manual STP 21-1-SMCT, Soldier’s Manual of Common  Tasks  that
he has submitted in support in  support  of  his  appeal.   Curiously,
applicant is apparently claiming  that  these  training  manuals  were
allegedly confiscated from his possession  by  the  government  on  16
February 1998, almost two years before his court-martial  in  February
2000, and that it was not until 15 July 2003, before he  was  able  to
obtain these pubic training  manuals  from  the  Air  Force  with  the
assistance of his congressperson.  His reason for his untimely  filing
is unavailing.  In our opinion, the interests of justice would not  be
served by excusing the  applicant’s  failure  to  submit  this  appeal
within the required time period; such waivers  should  be  limited  to
situations that avoid an actual injustice.

Timeless aside, his claim also fails on the merits.  To obtain  relief
from the AFBCMR, the applicant must show by  a  preponderance  of  the
evidence  that  there  exists  some  error  or  injustice   warranting
corrective action by the board.  The applicant argues that he suffered
from an injustice when he was convicted at this special  court-martial
and sentenced to a BCD and reduction to  E-1.   Injustices  have  long
been defined in the BCMR context as treatment by military  authorities
that shocks the sense of justice, but is not technically illegal.

According  to  JA,  there  is  nothing  in  the   applicant’s   AFBCMR
application establishing any “deprivation of fundamental fairness”  at
his  court-martial.   Rather,  the  case  file  clearly  reveals  that
applicant was afforded all of his appellate rights  to  challenge  any
evidentiary rulings, objections,  access  to  evidence  or  witnesses,
defense counsel effectiveness issues, or any other  matter  raised  by
applicant before  the  military  trial  judge  at  his  court-martial.
Indeed, the CAAF and AFCCA appellate opinions, attached to applicant’s
application, indicate that applicant challenged the legal and  factual
sufficiency of the  evidence  presented  against  him  and  sought  to
suppress the letter that applicant claims he did  not  author.   These
challenges were denied.  In any event, the newly  discovered  training
manuals  submitted  by  the  applicant  regarding  proper  EPW  search
techniques in deployed environment are irrelevant and  fail  to  prove
applicant’s innocence.  To the contrary, applicant’s  maltreatment  of
trainees through his inappropriate  opposite  sex  and  simulated  EPW
search demonstrations in a training context were a clear abuse of  his
authority as an NCO and training instructor.   Therefore,  applicant’s
claim that the Air Force and Army training manuals submitted with  his
application provided a legitimate basis  for  overturning  his  court-
martial conviction is without merit.

Regarding his claim that his RE code of 2M qualifies him  to  reenlist
at his original rank and his request to retire as a staff sergeant, JA
agrees with the AFPC/DPPRRP 5 December 2006, advisory  and  concur  in
its recommendation to deny relief.  The  applicant’s  claim  that  his
commander  signed  the  AF  Form  1160  “approving”  his  request  for
retirement  is  inaccurate.   Rather,  applicant’s  commander   merely
checked the box on the AF Form 1160, indicating  that  his  retirement
application was subject to the requirements of AFI 36-3203, Table 2.2,
and, therefore, had to be forwarded to the Secretary of the Air  Force
for final approval or disapproval.

The JA evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on
9 February 2007, for review and comment within 30 days.   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 error or injustice.   We  note  that  this  Board  is
without authority to reverse, set aside, or otherwise expunge a court-
martial conviction.  Rather,  in  accordance  with  Title  10,  United
States Code, Section 1552(f), actions by this  Board  are  limited  to
corrections to the record to reflect actions taken  by  the  reviewing
officials and action on the sentence  of  the  court-martial  for  the
purpose of clemency.  We also find no evidence  which  indicates  that
the applicant’s service characterization, which had its basis  in  his
conviction by special court-martial and was a part of the sentence  of
the military court, was improper or that it exceeded  the  limitations
set forth in the Uniform Code of Military  Justice  (UCMJ).   We  have
considered applicant's overall quality of service, the special  court-
martial conviction precipitating the discharge which was sustained  by
the CAAF and AFCCA, and the  seriousness  of  the  offenses  to  which
convicted,  e.g.,  wrongfully  making  sexual  advances   toward   and
attempting to develop a personal relationship with a trainee,  and  of
maltreatment of two trainees by  wrongfully  touching  their  breasts,
buttocks, and vaginal areas with his hands over their clothing.  Based
on the evidence  of  record,  we  cannot  conclude  that  clemency  is
warranted.  Further, we find no evidence to  warrant  overturning  the
Secretary of  the  Air  Force’s  decision  to  deny  his  request  for
retirement in lieu of  a  BCD.   In  view  of  the  above,  we  cannot
recommend approval based on the current evidence of record.

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 Docket  Number  BC-2006-
03565 in Executive Session on 3 May 2007, under the provisions of  AFI
36-2603:

                 Mr. James W. Russell III, Panel Chair
                 Ms. Maureen B. Higgins, Member
                 Ms. Josephine L. Davis, Member

The following documentary evidence was considered:

      Exhibit A. DD Form 149, dated 3 Nov 06, w/atchs.
      Exhibit B. Applicant's Master Personnel Records.
      Exhibit C. Letter, AFPC/DPPRS, dated 30 Nov 06.
      Exhibit D. Letter, AFPC/DPPRRP, dated 5 Dec 06, w/atchs.
      Exhibit E. Letter, AFPC/DPPWB, dated 18 Dec 06.
                       Exhibit F. Letter, AFPC/JA, dated 6 Feb 07.
      Exhibit G. Letter, SAF/MRBR, dated 9 Feb 07.






      JAMES W. RUSSELL III
      Panel Chair