RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  01-02616
				INDEX CODE:  110.00
	APPLICANT 	COUNSEL:  None

	SSN		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to honorable and his time served in confinement be counted as good time, which would give him enough good time to qualify for retirement.

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APPLICANT CONTENDS THAT:

The Air Force Command in England used the outcome of his court-martial as an example.  He was accused of driving while intoxicated (DWI); he was never tested to determine his blood alcohol level.  He was not allowed to have English witnesses to testify for him.  His 19 1/2 year career was not taken into consideration.  There was never a determination of who was at fault for the accident.  His court appointed military defense counsel made derogatory remarks about his character.

He has been carrying the remorse and shame for this for over 15 years.  The punishment awarded by the court martial was extreme and unwarrantable; compared to the results of a current administrative hearing of senior marine officers whose misconduct caused the loss of lives and destruction of government property.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 12 May 1967 for a period of four years as an airman basic.

During the period in question, the applicant was assigned to USAF Hospital at Beale AFB, CA.  While on TDY in RAF Mildenhall, UK, the applicant was involved in a motor vehicle accident, resulting in the death of a military member and severely injuring several civilians.

The applicant was tried by general court martial from 25 August 1986 through 4 September 1986.  He was charged in violation of Articles 119 and 111 of the UCMJ.  Charge one was having through culpable negligence, killed a passenger in a car then being driven by the applicant, and with operating a passenger car while drunk, causing his vehicle to strike another vehicle and injuring the passengers of the other vehicle.  The applicant was found guilty of the lesser charge of negligent homicide (Article 134, UCMJ) and driving while drunk and causing a motor vehicle accident and injuring others.  He was sentenced to a bad conduct discharge, confinement for two years and six months, and reduction to E-1.  In accordance to a pre-trial agreement the convening authority approved only so much of the sentence as provided for a bad conduct discharge, 24 months of confinement and reduction to E-1.  

On 26 February 1987, the Air Force Court of Military Review affirmed the findings and sentence.  On 4 September 1987, the U.S. Court of Military Appeals denied the applicant's petition for review of the lower court's decision.  A final court martial order was issued directing on 2 October 1987 that the bad conduct discharge be executed.  The discharge was executed on 5 November 1987.

Pursuant to the Board's request, the Federal Bureau of Investigation, Washington, D.C., provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM states the applicant has not provided any evidence to substantiate that his court martial sentence was more severe than others court-martialed or convicted for similar misconduct.  A stipulation of fact was submitted at the applicant's trial.  The stipulation of fact is commonly used when a guilty plea is anticipated.  Also, once a stipulation of fact has been entered, the facts of the case are uncontradicted.  The military judge explained the stipulation of fact to the applicant to ensure that the applicant had not signed or agreed to the document under coercion or duress; and the applicant acknowledged that he understood the contents of the stipulation fact.

According to the stipulation of fact the applicant was administered a blood alcohol test approximately three and one-half hours after the accident and it revealed the applicant's blood alcohol level was .145 milligrams of alcohol per deciliter of blood. 

The applicant alleges that his attorney was court appointed, but in fact the applicant requested that XXXXX. represent him and this was approved by xxxx.  The applicant's other attorney xxxx. was appointed by xxxx.  At trial, the judge explained to the applicant his rights regarding counsel.  The applicant informed the judge that he wished to be represented at trial by XXXX and XXXXXX.  There is nothing in the applicant's record to support his allegation that his defense counsel made disparaging remarks about his character.  Nor, is there any evidence in the applicant's record to indicate that he was denied the opportunity to present testimony of English national witnesses on his behalf.

The applicant's military records were introduced during the sentencing phase of the trial and the applicant exercised his right to have witnesses testify on his behalf and submitted other matters in mitigation, to include his unsworn statement.  In his unsworn statement the applicant told the court-marital members:  "I want you to know that I am ready to accept my punishment, I know more than anyone else in this courtroom the tragedy I've caused so many people."

Based on the information provided, JAJM recommends denying the applicant's request.

A complete copy of the Air Force evaluation is attached at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluation and the FBI report were forwarded to the applicant on 15 March 2002 and 28 June 2002, respectively for review and response.  As of this date, no response has been received by this office.

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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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.	Sufficient relevant evidence has been presented to demonstrate the existence of injustice warranting an upgrade of the applicant's discharge solely on the basis of clemency.  In this regard, no evidence has been presented which would lead the Board to believe the applicant's discharge was improper or contrary to the directive under which it was effected.  The recommendation of the Air Force is duly noted, however, we are of the opinion that upgrading the service member’s discharge to general (under honorable conditions), based on clemency, would be appropriate.  Applicant’s request for an honorable discharge was considered.  However, we are not persuaded that any further relief on the basis of clemency is warranted.  Therefore, we recommend the servicemember’s records be correct to the extent indicated below.

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THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 5 November 1987, he was discharged with the service characterized as general (under honorable conditions).

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The following members of the Board considered AFBCMR Docket Number 01-02616 in Executive Session on 22 May 2002 and 16 July 2002, under the provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

All members voted to correct the records, as recommended. The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 27 Oct 01, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	FBI Report.
	Exhibit D.	Letter, HQ AFLSA/JAJM, undated.
	Exhibit E.	Letter, SAF/MRBR, dated 15 Mar 02.