RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-03796
		INDEX CODE:  A87.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to a bad (BCD) conduct discharge.

His sentence to confinement be reduced from 21 years to 15 years.

His military records be corrected to properly reflect he has no convictions for assault.  

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APPLICANT CONTENDS THAT:

His military records improperly reflect two counts of assault under Article 128, Uniform Code of Military Justice (UCMJ).

In support of his appeal, the applicant provided an expanded statement.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 12 Dec 90 in the grade of airman basic for a period of four years.  He was dishonorably discharged on 24 Jul 98 as a result of his conviction by general court-martial for murder and animal torture.

On 14 Mar 01, the Board considered and denied an application pertaining to the applicant, in which he requested that his dishonorable discharge be upgraded and his court-martial conviction be set aside (Exhibit C).

The remaining relevant facts pertaining to this application are contained in the previous Board's Record of Proceedings and the letter prepared by the appropriate office of the Air Force.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial noting that the applicant was charged with the following UCMJ violations arising out of the same act in which the applicant violently shook his daughter on 2 Mar 1993, which caused her death:  murder (Article 118(2)), manslaughter (Article 119), negligent homicide (Article 134), assault consummated by a battery upon a child (Article 128), and assault with a force likely to produce grievous bodily harm (Article 128).  The murder, manslaughter and negligent homicide charges were pleaded in the alternative; i.e., the court members were directed to enter findings as to only one of those charges.  In addition, the applicant was charged with three specifications of maliciously torturing his cat and dog, in violation of Article 134, UCMJ.  Contrary to his pleas, the members found the applicant guilty of murder, both of the assaults, and all of the animal torture specifications.  They issued no findings as to the manslaughter and negligent homicide charges.

On 12 Jul 96, the Air Force Court of Criminal Appeals (AFCCA) considered whether the assault specifications were “multiplicious” with the unpremeditated murder charge.  The Court noted the applicant’s defense counsel failed to object as multiplicious to the specification of assault consummated by a battery on a child under 16 years, and, therefore, found the applicant forfeited this issue.  As to the specification of assault with a force likely to cause grievous bodily harm, the Court found it was a lesser included offense of unpremeditated murder.  Based on that finding, it set aside that assault specification.  Because it determined that the dismissal of the one assault specification would have had little impact on the sentence, the Court affirmed the sentence as approved.

On 24 Jun 97, the Court of Appeals for the Armed Forces (CAAF) disagreed with AFCCA’s determination that the applicant forfeited the issue of multiplicity regarding the specification of assault consummated by a battery on a child under 16 years.  Accordingly, CAAF set aside AFCCA’s decision, remanding it for further review.

AFLSA/JAJM indicated that when AFCCA considered the applicant’s case a second time, the applicant brought up another error.  The applicant alleged that the staff judge advocate’s recommendation incorrectly advised the convening authority the court-martial made “no findings” as to the two assault specifications.  AFCCA agreed and, on 1 Oct 97, set aside the remaining assault charge, thus mooting the multiplicity issue.

According to AFLSA/JAJM, the applicant’s military personnel records accurately reflect his convictions.  After appeals have been exhausted, evidence of a court-martial conviction are promulgated in a final court-martial order.  The applicant’s Unit Personnel Record Group contains copies of General Court-Martial Order No. 122, dated 21 July 1998.  This court-martial order states “the findings of guilty of specifications 1 and 2 of Charge IV and Charge IV have been set aside and dismissed.” (Charge IV consisted of the assault specifications.)  Therefore, the applicant’s military records properly reflect the violations of Article 128 were set aside and dismissed.  They have identified no military record that is in error, and the applicant has submitted no evidence of error.

In AFLSA/JAJM's view, there is no legal basis for upgrading the applicant’s discharge.  The appropriateness of the applicant’s sentence, within the prescribed limits, is a matter within the discretion of the court-martial and may be mitigated by the convening authority or within the course of the appellate review process.  The applicant had the assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court and the convening authority.  These matters were considered in review of the sentence.  The applicant was thus afforded all rights granted by statute and regulation.  The applicant provided no compelling rationale to mitigate the approved dishonorable discharge given the circumstances of the case.

AFLSA/JAJM stated that while clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant did not serve this enlistment honorably.  There are consequences for criminal behavior--the court members, convening authority and the appellate courts believed 21 years of confinement and a dishonorable discharge were appropriate consequences for his crimes.  Moreover, a dishonorable discharge accurately characterizes his military service.  The applicant has provided no evidence of a clear error or injustice related to the sentence.  The applicant presented insufficient evidence to warrant upgrading the dishonorable discharge, and does not demonstrate an equitable basis for relief.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response, the applicant indicated that he is not requesting clemency, but "administrative sentence credit" for due process violations which have occurred as a result of his records not properly reflecting the "confining offenses" and the proper opinions of the military courts.  He requests that the Board grant relief in the form of administrative sentence credit, discharge upgrade, and that it ensures that his records is corrected and upgraded with the proper information so that the various due process violations do not occur in future proceedings.

Applicant's complete response is at Exhibit F.

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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.  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 Air Force office of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The evidence of record indicates that he was sentenced to be dishonorably discharged and to be confined for 21 years as a result of his conviction by general court-martial for murder and animal torture.  Although he contends that his military records improperly reflect two counts of assault under Article 128, UCMJ, we note that the assaults charges were set aside.  Therefore, we are of the opinion that his military records now accurately reflect his convictions.  We also find no evidence which indicates that the applicant’s service characterization, which had its basis in his conviction by general court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ).  Furthermore, because of the short duration since the applicant’s separation and the serious nature of the offenses committed, we do not find upgrading the applicant’s dishonorable discharge or reducing his sentence to confinement based on clemency is appropriate in this case at this time.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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.

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The following members of the Board considered AFBCMR Docket Number BC-2002-03796 in Executive Session on 13 May 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 28 Oct 02, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Record of Proceedings, dated 30 Mar 01, w/atch.
    Exhibit D.  Letter, AFLSA/JAJM, dated 13 Feb 03.
    Exhibit E.  Letter, SAF/MRBR, dated 28 Feb 03.
    Exhibit F.  Letter, applicant, dated 12 Mar 03.