RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-02242
		INDEX NUMBER:  110.00
	XXXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

It appears that the applicant requests that the Bad Conduct Discharge (BCD) he received as a sentence of court-martial be upgraded to honorable, his former grade of master sergeant be restored and he be allowed to retire from the Air Force.

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APPLICANT CONTENDS THAT:

His court-martial and subsequent BCD were the result of the psychotic and criminal behavior of spouse who was diagnosed as clinically insane.

He was given drugs prior to his court-martial and was not allowed to solicit witnesses.

He was on mentally debilitating medication during the preparation of the pre-trial confinement.

He had ineffective assistance of counsel during his court-martial and during the appellate phase.  

The Staff Judge Advocate manipulated the physical evidence at his court-martial, his sanity hearing results, and the clemency actions.

He was on psychotropic and pain medication or undergoing medication withdrawal during the entire court-martial process.

In support of his appeal, applicant submits a copy of a 32-page letter that he wrote to the president detailing problems that he asserts his wife had that impacted his career.  He also provides a 17-page letter to provide additional details covering the period of his confinement.

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

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STATEMENT OF FACTS:

The applicant entered active duty on 27 Sep 71.  According to data contained in his military personnel records, on 1 Dec 89, the applicant’s commander requested a mental health evaluation of the applicant.  This was based on the applicant’s misconduct, i.e., use of cocaine and other crimes.  The applicant was seen at Wilford Hall Medical Center as an outpatient on 6 and 8 Dec 89.  However, on 14 Dec 89, while in administrative segregation at the Bergstrom AFB confinement facility, the applicant set himself on fire and sustained 18% second degree burns on his upper body.  Subsequently, on 19 Dec 89, the applicant’s Area Defense Counsel (ADC) made a request to the applicant’s commander that a continuing inquiry be made into the mental capacity and the mental responsibility of the applicant.  The commander concurred and on 19 Dec 89 requested that the Wilford Hall Medical Center Psychiatry Department conduct a continuing inquiry into the mental capacity and mental responsibility of the applicant.

On 2 Feb 90, a Sanity Board was convened to determine the mental capacity and mental responsibility of the applicant.  Among the key findings made by the Sanity Board were the following:

	  a.  Did the applicant have a severe mental disease or defect at the time of his alleged criminal conduct?  No.

	  b.  Was the applicant, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his conduct?  No.

	  c.  Did the applicant have sufficient mental capacity to understand the nature of the proceedings and to conduct or cooperate intelligently in the defense?  Yes.

On 2 Mar 90, the applicant was tried by General Court-Martial on five charges, each with several specifications.  The applicant pleaded guilty to four of the charges and was found guilty in accordance with his pleas.  The fifth charge was withdrawn after findings.  The applicant was sentenced to a BCD, confinement for five years, forfeiture of all pay and allowances, and reduction to airman basic.

Additional facts pertinent to this case are contained in the evaluation prepared by the appropriate office of the Air Force found at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends that the applicant’s requests be denied.  In support of their evaluation, AFLSA/JAJM attaches copies of two decisions by the Air Force Court of Military Review regarding the applicant’s court-martial.

The applicant, while serving on active duty in the grade of master sergeant, was tried by general court martial on 2 Mar 90.  He was charged with a variety of crimes.  He was represented by his military defense counsel and pleaded guilty to all but one charge, which was withdrawn by the convening authority.  Prior to trial, the convening authority entered into an agreement with the applicant not to approve any confinement in excess of ten years.  The convening authority approved the applicant’s sentence of a BCD, confinement to five years, forfeiture of all pay and allowances, and reduction to E-1 as adjudged.

AFLSA/JAJM provides details of the actions of the Air Force Court of Military Review regarding the applicant’s court-martial and various appeals.

AFLSA/JAJM also addresses the AFBCMR’s limitations regarding granting relief in cases involving court-martials.  According to AFLSA/JAJM, there are only two areas that the Board can grant relief, correction of a record to reflect actions taken by reviewing authorities under the UCMJ and “action on the sentence of courts-martial for the purpose of clemency.

The assertions raised by the applicant in this appeal have been addressed by the Air Force Court of Military Review, are not supported by facts, or made irrelevant by the applicant’s pleas of guilty.  The Air Force Court of Military Review gave the applicant every opportunity to present his claims.  Each of the applicant’s arguments were examined by the court and found to be without merit.  

AFLSA/JAJM asserts that the sentence received by the applicant was considerably less than the maximum possible.  Clemency should only be granted when the applicant has demonstrated that the degree of punishment in relation to the crime was a clear injustice.  The applicant has made no such showing.

The complete evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant responded to the Air Force evaluation in a seven-page letter.  He asserts that he has been a victim of the Air Force system.  The applicant’s presents his reasoning as to why his requests to the Board have validity.

The applicant’s complete response, with attachments, is at Exhibit E.

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THE BOARD CONCLUDES THAT:

1.  The application was not filed within three years after the alleged error or injustice was discovered, or reasonably could have been discovered, as required by Section 1552, Title 10, United States Code (10 USC 1552), and Air Force Instruction 36‑2603.  The applicant does not assert a date of discovery, which would, if correct, make the application timely.  The essential facts, which gave rise to the application, appear to have been known well before a date of discovery that would make this application timely.  Knowledge of those facts constituted the date of discovery and the beginning of the three-year period for filing.  Thus the application is untimely.

2.  Paragraph b of 10 USC 1552 permits us, in our discretion, to excuse untimely filing in the interest of justice.  We have carefully reviewed applicant's submission and the entire record, and we do not find a sufficient basis to excuse the untimely filing of this application.  The applicant has not shown a plausible reason for delay in filing, and we are not persuaded that the record raises issues of error or injustice which require resolution on the merits at this time.  Accordingly, we conclude that it would not be in the interest of justice to excuse the untimely filing of the application.

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DECISION OF THE BOARD:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

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The following members of the Board considered Docket Number 02-02242 in Executive Session on 6 March 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 29 Jul 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 18 Nov 02
                w/atchs.
    Exhibit D.  Letter, SAF/MIBR, dated 6 Dec 02.
    Exhibit E.  Letter, Applicant, dated 14 Dec 02, w/atchs.