RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-03536
            INDEX CODE: 110.00
      XXXXXXXXXXXX     COUNSEL: NONE
            HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

_________________________________________________________________

APPLICANT CONTENDS THAT:

His discharge was not based on his many years of service but on a  one  time
incident.  Statements made  about  the  character  of  his  service  by  the
officer who preferred charges were in error and  were  not  retracted  until
after his court-martial.  His service record was never  brought  up  because
his counsel was trying to prove there was a mistaken  identity.   He  served
his country proudly and his duty performance was commendable.   His  medical
health is worsening from injuries received  while  on  active  duty  and  he
believes he could have had a medical discharge  if  not  for  the  erroneous
statements.

In support of his request, applicant provided documentation  extracted  from
his military personnel records, and documentation associated with his court-
martial action and subsequent appeals.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Air Force on 22  Sep  75.
He was progressively promoted to the grade of technical sergeant.

On 6 Feb 92, applicant was tried by a general court-martial  for  committing
an indecent act upon the body of a female less than 16 years  of  age,  with
intent to gratify his sexual desires.  He pled  not  guilty  and  was  found
guilty of the  charge.   He  was  sentenced  to  a  dishonorable  discharge,
confinement for three years, reduction to airman  basic  and  forfeiture  of
$300 pay per month for three years.  The court-martial  approving  authority
approved his sentence on 21 Apr 92.  On 12 May 94, he  was  discharged  from
the Air Force.  He served 18 years, 4 months, and 13 days on active duty.

Pursuant to the  Board's  request,  the  Federal  Bureau  of  Investigations
provided an investigative report.  A copy of the  investigative  report  was
forwarded to the applicant on 6 Mar 08, for review  and  comment  within  30
days.  As of this date, this office has received no response.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends the application be time-barred.  If considered on  its
merits, JAJM recommends denial.  JAJM states in the  applicant's  appeal  to
the Air Force Court of Military Review, he argued first  that  the  evidence
was factually insufficient to  support  a  finding  of  guilty.   The  court
acknowledged that the child's testimony "was not free from difficulties  and
contradictions," but determined the evidence was  sufficient  to  support  a
finding of guilty.  He also  argued  that  the  military  judge  erroneously
denied a challenge for cause of a member of the  panel  who  made  a  joking
comment hoping to be bumped as a panel member because he  had  work  to  do.
The judge denied the challenge  because  it  had  not  been  determined  the
officer had anything else to  do  other  than  his  normal  duties  and  the
officer appeared to be willing to devote the necessary time  and  energy  to
the case.  Applicant's defense counsel  declined  further  opportunity  voir
dire  of  the  officer.   He  also  argued  that  his  defense  counsel  was
ineffective because he failed to present evidence of the child's  propensity
to lie by the  use  of  affidavits  of  other  adult  family  members.   The
appellate court determined the decision not to mount an emotional attack  on
the  child's  credibility  was  a  tactical  one,  based  in  part  on   the
unwillingness of family  members  to  "drive  the  family  apart"  and  that
defense counsel's decision to assert a  mistaken  identity  defense,  rather
than attack the child's credibility had a clear rational basis.

Under Title 10 U.S.C. Section 1552(f) (2) the AFBCMR's  ability  to  correct
records related to courts-martial is limited to action on  the  sentence  of
courts-martial on the basis of clemency.  The AFBCMR  is  without  authority
to reverse, set aside, or otherwise expunge a court-martial conviction  that
occurred on or after 5 May 90.

The applicant is not contending any specific  actions  have  been  taken  by
reviewing authorities that require correction of his record.  He sets  forth
little  basis  for  clemency.   It  is  true  that  he  was  prosecuted  and
discharged for a "one-time incident," not for his "many years  of  service."
This is not unfair, any service member convicted of an equally serious "one-
time  incident"   should   expect   to   be   discharged   with   the   same
characterization, no matter  how  stellar  the  member's  past  performance.
Records  indicate  that  the  officer  who  preferred  the  charges  on  the
applicant  before  the  court-martial  later  issued   a   letter   entitled
"Correction of Preference of Charges," dated 21 Mar 92, in which  he  states
that the applicant's duty performance had been  "less  than  acceptable  for
someone of his rank  and  experience."   Apparently,  the  officer  did  not
correct the statement until after  the  court-martial.   Nevertheless,  JAJM
advises that referral sheets are not presented to panel  members,  and  thus
could have had no impact on the outcome of the court-martial.

The complete JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 21  Dec
07 for review and comment within 30 days.  As of this date, this office  has
received no response.

_________________________________________________________________

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.  After thoroughly  reviewing  the  evidence
of record, we find no evidence to show that the applicant’s discharge  as  a
result of his conviction by  court-martial  was  erroneous  or  unjust.   We
believe that the service characterization he received is  supported  by  the
gravity of his offense.  In this  regard,  we  are  in  agreement  with  the
assessment of the Air Force office of primary responsibility and agree  with
its recommendation.  Therefore, 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  Number  BC-2007-03536
in Executive Session on 8 Apr 08, under the provisions of AFI 36-2603:

      Ms. Rita S. Looney, Panel Chair
      Ms. Karen A. Holloman, Member
      Mr. Garry G. Sauner, Member

The following documentary evidence  pertaining  to  Docket  Number  BC-2007-
03536 was considered:

    Exhibit A.  DD Form 149, dated 15 Nov 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Investigative Report #108755NA2, dated 28 Feb 08.
    Exhibit D.  Letter, AFLSA/JAJM, 6 Dec 07.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Dec 07.





                                   RITA S. LOONEY
                                   Panel Chair