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AF | BCMR | CY2008 | BC-2008-00670
Original file (BC-2008-00670.doc) Auto-classification: Denied


                            RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2008-00670
            INDEX CODE:  110.00
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be  upgraded  to
general (under honorable conditions).

_________________________________________________________________

APPLICANT CONTENDS THAT:

During his discharge processing, under council's advice, a plea  was  struck
for a length of  probation  [sic].   This  length  of  probation  kicked  in
military sanctions which effectively killed his  military  career.   In  the
interest of justice a general discharge would  allow  for  participation  in
several programs and allow benefits he is currently not entitled to.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 31 October 1984 in the  grade
of airman basic.

On 22 December 1986, the applicant was notified  by  his  commander  of  his
intent to recommend that he be discharged  from  the  Air  Force  under  the
provisions of AFR 39-10, paragraph 5-48, misconduct-civilian conviction.

The specific reason for this action was a civilian conviction  for  open  or
gross lewdness.  The applicant was charged  with  five  counts  by  criminal
information.  The first count being  open  or  gross  lewdness;  the  second
count - sexual assault with an allegation of fellatio;  the  third  count  -
sexual assault and allegations of sexual intercourse;  the  fourth  count  -
statutory sexual seduction,  fellatio;  and  the  fifth  count  -  statutory
sexual seduction, sexual intercourse.  The Eighth  Judicial  District  Court
of the State of Nevada found the applicant guilty by reason of his  plea  of
guilty and sentenced him to serve a term of one year  in  the  Clark  County
Jail.   The  applicant's  sentence  was  suspended  and  he  was  placed  on
probation for an indeterminate period of time not to exceed three years.

The applicant was advised of his rights  in  this  matter  and  acknowledged
receipt of the notification  on  that  same  date.   After  consulting  with
counsel, the applicant elected a hearing before an administrative  discharge
board and elected not to submit statements on his  own  behalf.   The  board
recommended discharge without probation and rehabilitation.

In a legal review of the case file, the staff judge advocate found the  case
legally sufficient  and  recommended  discharge.   On  16  March  1987,  the
discharge  authority  concurred  with  the  recommendations   and   directed
discharge with a UOTHC  discharge,  without  probation  and  rehabilitation.
The applicant was discharged on 25 March 1987.  He served 6 years,  1  month
and 28 days on active duty.

Pursuant to the Board's request, the Federal Bureau of  Investigation  (FBI)
provided a copy of an Investigative Report, which is at Exhibit C.

On 6 May 2008, the applicant was provided the opportunity to respond to  the
Investigative Report and to provide documentation pertaining  to  his  post-
service activities, within 30 days (Exhibit  D).   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 an error or an injustice.   After  a  thorough  review  of  the
evidence of record and the applicant’s submission, we find  no  evidence  of
an error or injustice that occurred in the discharge processing.   Based  on
the evidence of record, it appears the discharge  was  consistent  with  the
substantive  requirements  of  the  discharge  regulation  and  within   the
commander’s  discretionary  authority.   The  applicant  has   provided   no
evidence which would lead us to believe the characterization of the  service
was contrary to the provisions of the governing  regulation,  unduly  harsh,
or disproportionate to the offenses committed.  Therefore,  in  the  absence
of evidence to the contrary, we  find  no  basis  upon  which  to  recommend
granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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 AFBCMR Docket Number BC-2008-
00670 in Executive Session on 16 July 2008, under the provisions of AFI 36-
2603:

                 Mr. Jay H. Jordan, Panel Chair
                 Mr. Steven A. Cantrell, Member
                 Mr. Kurt R. LaFrance, Member

The following documentary evidence was considered:

  Exhibit A. DD Form 149, dated 10 February 2008.
  Exhibit B. Applicant's Master Personnel Records.
  Exhibit C. FBI Report of Investigation.
  Exhibit D. Letter, SAF/MRBC, dated 6 May 2008.





                       JAY H. JORDAN
                       Panel Chair



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