RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:                       DOCKET NUMBER:  BC-2007-00988
                                             INDEX CODE:  106.00
      XXXXXXXXXXXXXXXX                  COUNSEL:  NONE

                                             HEARING DESIRED:  NO


MANDATORY CASE COMPLETION DATE:  29 September 2008


________________________________________________________________

APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded.

________________________________________________________________

APPLICANT CONTENDS THAT:

His current discharge does not reflect his character  of  service.   Due  to
the speed in which a judgment was made against him, he doesn’t  believe  his
military record was given much consideration.  Had the record been  read  in
court proceedings, he believes he would have fared better.

Having been confined with other offenders, he could not  understand  why  he
received such a bad discharge.  There were many  there  with  more  grievous
offenses than his, and they all received bad conduct discharges  (BCD),  not
dishonorable discharges.

He believes his discharge was due more to comments he made in  court  rather
than his offenses.  His comments were foolish and made out  of  frustration,
and he asks for forgiveness for his comments.

He has argued many times how he felt his  defense  lawyer  failed  him.   He
won’t repeat them here except to say his discharge would  have  been  better
if his defense lawyer had done a better job.

Although he doesn’t have letters showing  his  good  citizenship  since  his
discharge, he has not been in  trouble  and  has  remarried.   He  has  also
become disabled with problems he suffered while in the service.  The  VA  is
not helping him with these problems  even  though  he  had  prior  honorable
service.  He believes it is due to this discharge, and he has  been  waiting
over 10 months for an answer.

The attached performance reports should be read  aloud  during  the  Board’s
deliberations.  They cover over 14 years of service and tell much about  his
character of service.

He thought he had 15 years in which to apply for review of his discharge.

In support of his appeal, he has provided copies of 17 Enlisted  Performance
Reports (EPRs).

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

________________________________________________________________

STATEMENT OF FACTS:

Applicant initially entered active duty on 10 December 1973 and served as  a
radio relay equipment repairman until being honorably released  from  active
duty on 8 August 1977.  He reentered the active Air Force on 11 April  1978,
served as a satellite and wideband communications  equipment  craftsman  and
an apprentice dental assistant, and was serving in the  grade  of  technical
sergeant (E-6) when his court martial convened.

In accordance with his guilty plea and  his  pretrial  agreement,  applicant
pled guilty and was convicted by a general court- martial on 16  June  1992,
for, between on or about 12 June 1987, and on or about 23 April 1992, at  or
near Nellis  AFB,  NV,  K.I.  Sawyer  AFB,  MI,  and  Alzsey  Communications
Station, Germany, committing indecent acts upon the body of a  female  under
16 years of age, with the intent to gratify his  lust  and  sexual  desires.
He was sentenced to a dishonorable discharge, three years  confinement,  and
a reduction to the grade of airman first class.  The reduction in grade  was
suspended  until  the  completion  of  his  confinement,  the  approval  and
execution of the dishonorable discharge, or until he separated from the  Air
Force under any other circumstances, whichever came first,  at  which  time,
unless the suspension was sooner vacated, the suspended reduction  would  be
remitted without further action.

Upon completion  of  the  appellate  review  of  his  general  court-martial
conviction, applicant was discharged on 20 October 1994 with a  dishonorable
discharge.

A resume of applicant's last 10 performance reports follows:

      PERIOD ENDING                     OVERALL EVALUATION

      14 Mar 1992                       5
      14 Mar 1991                       4
      14 Oct 1990                            4
       1 Apr 1990                       5
       1 Apr 1989                            9 (firewall)
      17 Jun 1988                            9 (firewall)
       3 Feb 1988                            9 (firewall)
       3 Feb 1987                            9 (firewall)
       3 Feb 1986                            9 (firewall)
      24 Feb 1985                            9 (firewall)

His records indicate he is entitled to the  Air  Force  Commendation  Medal,
Air Force Outstanding Unit Award, Air Force Good  Conduct  Medal  with  four
Oak Leaf Clusters, National Defense  Service  Medal  with  one  Device,  Air
Force Overseas Short Tour Ribbon, Air Force Overseas Long Tour  Ribbon  with
one Device, Air Force Longevity Service Award  Ribbon  with  three  Devices,
USAF  NCO  PME  Graduate  Ribbon  with  one  Device,   Small   Arms   Expert
Marksmanship Ribbon, and Air  Force  Training  Ribbon.   He  served  from  2
August  1990  through  15  June  1992  in  support   of   Operation   Desert
Storm/Desert Shield.  Although his reduction to the grade  of  airman  first
class (E-3) was suspended until  the  completion  of  his  confinement,  the
approval and execution of the dishonorable discharge, or until he  separated
from the Air Force under any other circumstances, whichever came  first,  at
which  time,  unless  the  suspension  was  sooner  vacated,  the  suspended
reduction would  be  remitted  without  further  action,  his  DD  Form  214
erroneously indicated he was discharged in the grade of airman  first  class
(E-3) which was corrected by the AFBCMR on 29 January 1996 to  show  he  was
discharged in the grade of technical sergeant (E-6) with an  effective  date
and date of rank of 1 May 1988.

Pursuant to the  Board's  request,  the  Federal  Bureau  of  Investigation,
Clarksburg, WV, indicated that on the basis  of  the  data  furnished,  they
were unable to locate an arrest record (Exhibit C).

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AIR FORCE EVALUATION:

AFLOA/JAJM  recommends  denial  as  applicant’s  contentions  are  untimely,
without merit, and constitute neither an  error  nor  injustice.   Applicant
has not contested the merits of his trial, as the result was  in  accordance
with his pretrial agreement.

Ordinarily, an applicant must file an application within three  years  after
the alleged error or  injustice  was  discovered  or,  with  due  diligence,
should have been discovered.  He alleges no error or injustice  and  he  was
sentenced in 1992.  Although he alleges he thought he had 15 years in  which
to apply for review of his discharge, this argument is  without  merit.   He
has submitted two previous applications to the Board,  and  should  be  well
aware of the three-year time limitation from his  previous  experience.   As
such, the application is untimely and should be denied.

Title 10, United States Code, limits the Board’s ability to correct  records
relating to courts-martial to correction of  a  record  to  reflect  actions
taken by reviewing authorities under the UCMJ,  and  correction  of  records
related to action on the sentence of a courts-martial  for  the  purpose  of
clemency.  Aside from these two limited exceptions,  the  Board  is  without
authority to reverse,  set  aside,  or  otherwise  expunge  a  court-martial
conviction that occurred on or after 5 May 1950.

The applicant contends that a dishonorable  discharge  does  not  accurately
reflect his character of service.  In accordance with R.C.M.  1003(b)(8)(B),
a dishonorable  discharge  should  be  reserved  for  those  who  should  be
separated under conditions of  dishonor,  after  having  been  convicted  of
offenses usually recognized in civilian jurisdictions as felonies.   He  was
convicted of committing indecent acts  with  a  minor  on  divers  occasions
during an almost five year period, and this offense  is  usually  recognized
in civilian jurisdictions as a felony.   A  dishonorable  discharge  was  an
appropriate sentence and well within  the  jurisdiction  of  the  sentencing
authority.  There  is  no  evidence  the  sentencing  authority  abused  his
discretion, and a  dishonorable  discharge  was  permissible  punishment  in
accordance with his pretrial agreement.

He also contends there were other defendants with whom he was  confined  who
committed “more grievous offenses.”  This contention  is  without  merit  as
there is no information  regarding  the  offenses  of  these  other  alleged
defendants with whom the applicant was confined, nor is the  information  in
any manner relevant to his case.   In  addition,  the  Air  Force  Court  of
Military Review reviewed the sentence and found the  findings  and  sentence
correct in fact and law.  There is no evidence  of  error  or  injustice  in
this case, and as such, there is no basis to  grant  relief.   Consequently,
any decision regarding his discharge status would  have  to  be  done  as  a
matter of clemency.

While clemency is an option, there is no reason for the  Board  to  exercise
clemency in this case.  He presents no new evidence and he alleges no  legal
error.  His EPRs were already considered by the trial and appellate  courts,
and do not demonstrate an equitable basis  for  relief.   In  addition,  his
request, made almost 15 years after the court-martial, is grossly  untimely,
and they recommend the Board deny relief.

The AFLOA/JAJM evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the evaluation was forwarded to the applicant on  8  June
2007, for review and comment within 30 days.  However, as of this  date,  no
response has been received by  this  office.   Additionally,  applicant  was
given a chance on 11 July 2007, to
provide information within 30 days pertaining to his activities
since leaving the service.  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 a general  court-
martial and was a part of a pre-trial agreement  and  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   general   court-martial
conviction which precipitated the discharge,  and  the  seriousness  of  the
offense for which convicted - indecent acts over an almost five year  period
upon the body of a female under 16 years of age with the intent  to  gratify
his lust and sexual desires  -  which  is  usually  recognized  in  civilian
jurisdictions as a felony.  The EPRs he submits were already  considered  by
the trial and appellate courts, and do not demonstrate  an  equitable  basis
for relief.  Based on the  evidence  of  record,  we  cannot  conclude  that
clemency is warranted.

________________________________________________________________

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-2007-00988
in Executive Session on 23 August 2007, under  the  provisions  of  AFI  36-
2603:

                       Ms. Kathleen F. Graham, Panel Chair
                       Mr. Wallace F. Beard, Jr., Member
                       Ms. Karen A. Holloman, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 22 Mar 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Negative FBI Report, dated 28 Jun 07.
    Exhibit D.  Letter, AFLOA/JAJM, dated 15 May 07.
    Exhibit E.  Letter, SAF/MRBR, dated 8 Jun 07.
    Exhibit F.  Letter, AFBCMR, dated 11 Jul 07, w/atch.




                                   KATHLEEN F. GRAHAM
                                   Panel Chair