RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2011-00272
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:
He was not given correct advice from his defense lawyer. He was
setup by the so-called victims father who was up on charges
for something he did wrong.
He was told that even if he was cleared of the charges, he would
still be discharged.
In support of his request, the applicant provides a DD Form 293, Application for the Review of Discharge from the Armed Forces of
the United States.
The applicant's complete submission, with attachment, is at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 9 Jul 79, the applicant enlisted in the Regular Air Force for
a period of six years, and was progressively promoted to the
grade of staff sergeant.
On 26 Jun 84, the applicants commander brought court-martial
charges against him for one specification of offering to exhibit
harmful matter to a minor at his on base quarters in violation of
the California Penal Code and Article 134 of the Uniform Code of
Military Justice (UCMJ). Specifically, the applicant hired a
female babysitter to watch his young son, and told her she was
welcome to watch x-rated movies on his VCR and look at pictures
of models in some photo albums in the living room. Upon his
departure, the baby-sitter viewed the material offered by the
applicant. The albums contained hundreds of pictures of naked
women, four pictures of male genitalia, and pictures of the
applicant naked.
On 29 Jul 84, after consulting with legal counsel, the applicant
submitted a voluntary request for discharge in lieu of trial by
court-martial. He understood if his request was approved he
might be discharged with an UOTHC discharge. On 23 Jul 84, the
wing commander accepted his request for discharge and recommended
the group commander approve the applicants request.
On 31 Jul 84, the group commander concurred with the wing
commanders recommendation, and recommended the applicant receive
an UOTHC discharge.
The Acting Staff Judge Advocate reviewed the case and found it
legally sufficient to support separation and recommended the
applicants request for discharge in lieu of trial by court-
martial be approved and that he receive an UOTHC discharge.
On 13 Aug 84, Headquarters Fifteenth Air Force approved the
discharge in lieu of trial by court-martial and directed the
applicant receive an UOTHC discharge.
On 22 Aug 84, the applicant was discharged, under the provisions
of AFR 39-10, Administrative Separation of Airmen, Chapter 4,
Request for Discharge in Lieu of Trial by Court-Martial, and
received an UOTHC discharge. He served on active duty for a
total of 9 years, 8 months, and 26 days.
Pursuant to the Boards request, the Federal Bureau of
Investigation (FBI) provided a copy of an Investigative Report,
which is at Exhibit C.
On 4 Apr 11, a copy of the FBI report was forwarded to the
applicant for review and comment within 30 days. At the same
time, the applicant was offered an opportunity to provide
information pertaining to his activities since leaving the
service (Exhibit D).
The applicant provided a character letter from his pastor which
is attached at (Exhibit E).
_________________________________________________________________
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 took notice
of the applicant's complete submission in judging the merits of
the case; however, based on the available 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 his service was contrary to the provisions of the governing
regulation, unduly harsh, or disproportionate to the offenses
committed. We considered upgrading the discharge based on
clemency; however, we do not find the evidence presented is
sufficient to compel us to recommend granting the relief sought
on that basis. 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 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-2011-00272 in Executive Session on 9 and 14 Jun 11, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 19 Jul 10, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. FBI Report of Investigation, dated 22 Feb 11.
Exhibit D. Letter, AFBCMR, dated 4 Apr 11.
Exhibit E. Character Letter, dated 17 Apr 11.
Panel Chair
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