RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

      IN THE MATTER OF:            DOCKET NUMBERS:  BC-2007-02813 AND
                                 BC-2007-02900
            INDEX CODE: 112.10
      XXXXXXX                     COUNSEL:  NO
                                   HEARING DESIRED:  NO

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IN TWO SEPARATE DD FORM 149'S THE APPLICANT REQUESTS THAT:

1. His general  (under  honorable  conditions)  discharge  be  upgraded  to
honorable.

2.  His grade be restored to staff sergeant (SSgt).

3.  His reenlistment eligibility (RE) reason of  “4E”,  "Grade  is  A1C  or
below and the airman completed 31 or more  months  (55  months  for  6-year
enlistees), if a first term airman; or; grade  is  A1C  or  below  and  the
airman is a second term or career airman.” be changed to a  more  favorable
RE code.

4.  His court-martial conviction be overturned.

5.  The Air Force grant him unemployment benefits.
________________________________________________________________

APPLICANT CONTENDS THAT:

He was accused of having an unprofessional relationship with a student.  At
no time was he in the chain of command of the student he was  convicted  of
having the relationship with.   He pled not guilty because  when  they  met
she did not inform him of her student status even though he had asked.  She
lied in court and indicated she had  informed  him.   The  student  he  was
convicted of having a relationship with had already  been  in  trouble  for
providing false statements to a Noncommissioned Officer  (NCO)  on  one  or
more occasions.  His chain of command decided to  discharge  him  after  he
served his punishment. Considering the jury did  not  recommend  a  general
discharge the jury felt he could still be  a  positive  asset  to  the  Air
Force.   He believes there is enough evidence in the  record  of  trial  to
have the decision overturned.  He served nearly five years and had a  great
career.  He was twice selected outstanding performer of  the  month,  sharp
troop of the month and was promoted to senior  airman  below-the-zone.   In
addition, he was selected for SSgt and Military Training  Instructor  (MTI)
duties with less than four years of service and was awarded two Achievement
Medals.  His record is  clean  except  for  the  court-martial  conviction.
Considering his impeccable record, his punishment was too  harsh.   Another
instructor committed the same offense; however, he was given an Article  15
and returned to his original career field.  He had one  year  left  on  his
contract and would like to finish it with honor.

In support of his requests, the applicant submits a personal statement  and
excerpts from his record of trial.

His complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force  on  6  August  2002  for  a
period of six years.  While serving as an MTI, between 1 November  2006  and
30 November 2006, he violated a  lawful  general  regulation  by  wrongfully
establishing, developing, and conducting a personal,  intimate,  and  sexual
relationship with a trainee.  On 3 May  2007,  he  was  court-martialed  and
reduced to the grade of airman (E-2), ordered to forfeit $972.00 of pay  per
month for two months, and confined for two months.  On 2 July 2007,  he  was
notified by his commander of his intent to recommend he be  discharged  from
the  Air  Force  for  commission  of  a  serious  offense.   The   applicant
acknowledged receipt of the notification of discharge and  after  consulting
with legal counsel submitted statements in his own behalf.  The  base  legal
office reviewed  the  case  and  found  it  legally  sufficient  to  support
separation and recommended he be discharged with a general discharge.

On 27 July 2007, he was discharged from the Air Force for misconduct in  the
grade of airman (E-2).  His service was characterized as general.

He served 4 years, 11 months and 22 days on active duty.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the Board's ability  to  correct
records related to courts-martial is limited.   Section  1552  permits  the
correction of a record to reflect actions taken by  a  reviewing  authority
under the Uniform Code of Military Justice  (UCMJ).   Additionally  section
1552 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  is  that  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 effective date of  the
UCMJ).  While clemency may be granted under  section  1552,  the  applicant
provides no justification for his request, and clemency is not warranted in
this case.  In the Air Force, having an unprofessional relationship with  a
trainee is a serious offense  given  the  position  of  authority  training
instruction have over trainees and the amount of trust placed  in  training
instructors to maintain a professional environment conducive  to  learning.
At trial, evidence was presented  that  the  applicant  was  aware  of  the
prohibition of engaging in unprofessional relationships and he and his area
defense counsel (ADC) presented evidence in extenuation and mitigation  for
the jury’s consideration prior to their sentencing decision.   Furthermore,
the applicant availed himself to the clemency process and  after  reviewing
his request the convening authority  approved  the  findings  and  sentence
adjudged by the jury.  The Board is without the authority to set aside  the
applicant’s special court-martial conviction.  There being no  evidence  of
clear error or injustice, JAJM recommends the Board deny  the  request  for
clemency on his adjudged sentence.

The complete JAJM evaluation is at Exhibit D.

AFPC/DPSOA recommends denial.  DPSOA states no issue of error or  injustice
warranting the requested relief is presented by the applicant  as  he  held
the grade of E-3 or below at the time of his discharge.

The complete DPSOA evaluation, with attachments, is at Exhibit E.

HQ AFPC/DPSOS recommends denial.  DPSOS states based on  the  documentation
on file in the master personnel records, the discharge was consistent  with
the procedural and substantive requirements of  the  discharge  regulation.
The discharge was within the discretion of the  discharge  authority.   The
applicant did not submit any evidence or identify any errors or  injustices
that occurred in the discharge processing.  He provided no facts warranting
a change to his general discharge or a change to his RE code.

The complete DPSOS evaluation is at Exhibit F.

HQ AFPC/DPSOE recommends denial.  DPSOE  states  per  JAJM,  the  Board  is
without authority to set aside the  court-martial  conviction.   JAJM  also
recommended  denial  for  clemency  on  his  adjudged   sentence   due   to
insufficient evidence of clear error or injustice.  DPSOE defers  to  their
recommendation.

The complete DPSOE evaluation is at Exhibit G.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded stating the papers he sent to the Board  highlights
the untruthfulness  of  the  student.   These  papers  are  copies  of  her
testimony during the trial and testimonies from her instructors, and two of
the  government's  witnesses.   If  the  logic  or  her  circumstances  are
considered, it leaves more than enough room to believe  she  was  lying  to
protect herself.  She had ample time to come  up  with  a  story  to  cover
herself.  Once her statements were made, she  could  not  go  back  without
committing perjury.  Up until this point,  his  record  was  spotless.   He
admitted to having the relationships but did not know the girls were  in  a
training status.  The students were not ever in his chain of command or  in
a position for him to have any influence  on  their  career.   Two  of  the
government witness indicated nothing was  ever  said  about  the  student's
status.  He was found guilty on  one  of  the  charges  because  the  other
student had the integrity to tell the truth.  The other student did not and
he was found guilty.  The student that did not tell the truth  is  the  one
previously in trouble for lying to her NCO.  He is not looking for  special
treatment, only justice.

The applicant's complete response is at Exhibit H.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by  existing  law  or
regulations.

2.  The application was time filed.

3.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of error or injustice.  After a thorough review  of  the  evidence
presented, we find  no  evidence  of  an  error  that  occurred  during  the
applicant's trial by court-martial or during his discharge  processing,  and
we are not persuaded by his uncorroborated assertions that he has  been  the
victim of an injustice.  In our view, the applicant's contentions have  been
adequately addressed by the Air Force offices of primary responsibility  and
we do not find his  response  to  their  opinions  sufficiently  persuasive.
Accordingly, we adopt the rationale expressed as basis  for  our  conclusion
that the applicant has  failed  to  sustain  his  burden  of  proof  of  the
existence of either an error  or  injustice  warranting  corrective  action.
Regarding his request for  unemployment  benefits,  the  authority  of  this
Board is limited to the correction of Air Force records and this portion  of
his request is not within  our  purview  of  authority.   Therefore,  absent
persuasive evidence to  the  contrary,  we  find  no  basis  upon  which  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  Numbers  BC-2007-02813
and BC-2007-02900 in  Executive  Session  on  10  January  2008,  under  the
provisions of AFI 36-2603:

           Mr. James W. Russell, III, Panel Chair
           Mr. Mark J. Novitski, Member
           Ms. Lea Gallogly, Member

The following documentary evidence was considered:

 Exhibit A.  DD Form 149, dated 15 August 2007, w/atchs; DD Form 149, dated
               31 August 2007, w/atchs.
 Exhibit B.  Applicant's Master Personnel Records.
 Exhibit C.  Letter, AFLOA/JAJM, dated 9 October 2007.
 Exhibit D.  Letter, AFPC/DPSOA, dated 17 October 2007, w/atchs.
 Exhibit E.  Letter, AFPC/DPSOS, dated 18 October 2007.
 Exhibit F.  Letter, AFPC/DPSOE, dated 29 October 2007.
 Exhibit G.  Leter, SAF/MRBR, dated 30 November 2007.
 Exhibit H   Letter, Applicant, dated 3 December 2007.





                                             JAMES W. RUSSELL III
                             Panel Chair