RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2007-02074
            INDEX CODE:  134.00

            COUNSEL:  NONE

            HEARING DESIRED:  NOT INDICATED


_________________________________________________________________

APPLICANT REQUESTS THAT:

His felony conviction be removed from his records.

_________________________________________________________________

APPLICANT CONTENDS THAT:

On 31 Jan 06, the Air Force Court of Criminal Appeals  set  aside  the
findings and sentence of his court-martial; he was retried  and  found
not guilty.

In  support  of  his  appeal,  the  applicant   provides   copies   of
documentation pertaining to his court-martial and  extracts  from  his
military personnel records.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 12 Aug 82 for a  period
of four years in the grade of airman basic.

On 5 Jul 02, he was convicted by general  court-martial  of  rape  and
adultery.  He was sentenced to 30 months confinement and  a  reduction
from the grade of master sergeant to staff sergeant.

On 31 Jan 06, the findings and sentence of the court-martial were  set
aside on appeal and the convening authority subsequently dismissed the
charge of adultery.  On 15 Jun 06,  a  military  judge  dismissed  the
charge of rape without prejudice.  On 22 Feb 07, the rehearing on  the
sole charge of rape resulted in the applicant’s acquittal.

On  18  Apr  07,  his  military  personnel  flight   (MPF)   requested
corrections to the applicant’s rank and years of  service  on  his  DD
Form 214, Certificate of Release or Discharge from Active  Duty.   The
MPF also requested the DD Form 214 be amended to reflect no lost time.

By Special Order  AC-016198,  dated  29  Mar  07,  the  applicant  was
relieved from active duty on 24 Jun 07 and retired,  effective  25 Jun
07 in the grade of master sergeant (MSgt).  He was  credited  with  22
years, 1 month, and 19 days of active  service  for  retirement.   The
special order was amended by Special Order AC-010916, dated 15 Sep 08,
to reflect the applicant’s service for basic  pay  (24  years  and  28
days), active service for retirement (23 years, 6 months, and 1  day),
and his service per 10 USC 1405 (23 years, 6 months, and 10 days).

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/JA  recommends  denial  indicating  that,   in   their   opinion,
appropriate  corrective  action  was  taken  after   the   applicant’s
rehearing.

According to AFPC/JA, an amendment of records is appropriate when such
records are established as being inaccurate, irrelevant, untimely,  or
incomplete.   Amendment  procedures  are  not   intended   to   permit
challenging an event that actually occurred.  For example,  a  request
to  remove  an  individual’s  name  as  the  subject  of  a   criminal
investigation  would  be  proper  providing  credible   evidence   was
presented to substantiate that a criminal offense was not committed or
did not occur as reported.  Expungement of a  subject’s  name  from  a
record because the commander took no action,  the  prosecutor  elected
not to prosecute, or that the individual was acquitted  normally  will
not be approved.  In compliance with the Department of  Defense  (DOD)
policy, an  individual  will  still  remain  entered  in  the  Defense
Clearance  Investigations  Index  (DCII)  to  track  all  reports   of
investigation, reporting individual offenders  to  the  USACRC,  NCIC,
CJIS, and the DOD.  DOD collects data from all the Services  utilizing
the Defense Incident-Based Reporting System (DIBRS).  DIBRS data  from
DOD is  eventually  sent  to  the  Department  of  Justice’s  National
Incident-Based Reporting  System  (NIBRS).   The  data  is  eventually
incorporated into  the  Uniform  Crime  Report.   If  the  applicant’s
conviction was reported, he  may  begin  the  expungement  process  by
contacting the Air Force Office of Special Investigation  (AFOSI)  and
any local law enforcement agencies that have recorded the  conviction.
The AFOSI will respond to such requests in  the  same  manner  as  the
Freedom of Information Act (FOIA) and Privacy Act cases.

A complete copy of the AFPC/JA evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  26
Sep 08 for review and response within 30 days.  As of  this  date,  no
response has been received by this office (Exhibit D).

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of  the  AFPC/JA
and adopt their rationale as the basis for  our  conclusion  that  the
applicant has not been the victim of an error or injustice.   After  a
thorough review of the available evidence, it appears all  appropriate
corrective action pertaining to  his  records  that  fall  under  this
Board’s purview has been taken.  In view of the foregoing, and in  the
absence of evidence to the contrary, we find no  compelling  basis  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  this  application  in
Executive Session on 19 Nov 08, under the provisions of AFI 36-2603:

      Mr. Wayne R. Gracie, Panel Chair
      Mr. Anthony P. Reardon, Member
      Mr. James G. Neighbors, Member

The following documentary evidence pertaining to AFBCMR Docket  Number
BC-2007-02074 was considered:

    Exhibit A.  DD Form 149, dated 20 Jun 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/JA, dated 24 Oct 07.
    Exhibit D.  Letter, SAF/MRBR, dated 26 Sep 08.




                                   WAYNE R. GRACIE
                                   Panel Chair