RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-02937
		INDEX NUMBER:  105.00
	XXXXXXXXXXXXX	COUNSEL:  None

	XXX-XX-XXXX	HEARING DESIRED:  Yes

_________________________________________________________________

APPLICANT REQUESTS THAT:

His dismissal from the Air Force by sentence of a general court-martial be upgraded to a general discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

In a four-page letter, applicant provides the details and circumstances of the events that led to his court-martial and dismissal from service.  He also discusses the impact his dismissal from the Air Force has had on his ability to earn a living and support his family.  His hope is that the Board will understand his “motive” from a personal point of view and see fit to upgrade his dismissal.

The applicant’s former military counsel provides a six-page memorandum requesting that his dismissal be upgraded on the basis of clemency.  She asserts that the years of outstanding and honorable service the applicant provided to the Air Force warrants his being given a general discharge.  She provides a summary of the applicant’s assignments and accomplishments.

The applicant’s former military counsel also indicates that there are extenuating and mitigating circumstances surrounding the applicant’s conduct for which he was court-martialed.  Since the applicant was court-martialed for events surrounding his relationship with an enlisted member of his unit (now his wife), counsel provides a review of the circumstances leading up to the applicant’s court-martial, the breakdown of the applicant’s marriage at the time and his subsequent involvement with his current wife, then an enlisted member of his unit.  

Counsel further discusses the actions of the applicant’s unit regarding treatment of the enlisted member he was involved with and their inconsistent enforcement of a no-contact order.  She also opines that the Air Force made the applicant’s situation worse by the taking a prolonged period of time to go to trial.

Due to the dismissal in his record, the applicant’s ability to earn a living has been compromised.  Finally, applicant’s former military counsel discusses the applicant’s case in light of another high profile similar case.  She asserts that there were over 500 officer-enlisted marriages in the Air Force at the time of the applicant’s trial.  In fact, the applicant’s commander at the time of his trial was married to an enlisted member.  Presumably, these individuals fraternized to some extent before they married.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 25 Dec 86.  On 22 Apr 99, while serving in the grade of captain, applicant was tried before a general court-martial.  He was charged with one specification of conspiracy to obstruct justice, two specifications of willfully disobeying a superior commissioned officer, one specification of violating a lawful general regulation on divers occasions (fraternization), and two specifications of obstruction of justice in violation of Articles 81, 90, 92, and 132 of the Uniform Code of Military Justice.  Pursuant to the applicant’s pleas of guilty, he was convicted of all charges.  The applicant chose to present his case on sentencing to a panel of officers.  After considering all of the evidence presented by both the government and the applicant, the panel sentenced the applicant to be dismissed from the Air Force and to 15 days confinement.

The court-martial convening authority approved the applicant’s sentence on 19 Jun 99.  Because the applicant’s sentence included a dismissal, it was reviewed by the United States Court of Criminal Appeals, which, on 5 Oct 99, affirmed the findings of guilt and the sentence.  On 3 Aug 00, the SECAF approved the applicant’s sentence.  The applicant was dismissed from the Air Force effective 21 Aug 00.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s appeal.  They point out that the AFBCMR’s ability to correct records related to court-martials is limited.  They provide a copy of the stipulation of fact, signed by the applicant, which gives the details of the applicant’s crimes.

The applicant was tried in the appropriate forum and pleaded guilty and admitted his crimes.  The maximum punishment authorized for the offenses that the applicant was convicted of was dismissal, confinement for 22 years, and forfeiture of all pay and allowances.  The terms of a pretrial agreement capped the maximum amount of confinement at nine months and prohibited commuting a dismissal into confinement.  So, at the time, the applicant preferred dismissal rather than additional jail time.

The appropriateness of the applicant’s sentence was reviewed by all the levels required by statute, including, personally, by the Secretary of the Air Force (SECAF).  The applicant had the capable assistance of counsel in presenting extenuating and mitigating matters to the court, the convening authority, and the SECAF.  The applicant provides no compelling rationale to mitigate the approved dismissal given the circumstances of his case.

Regarding clemency, all of the grounds applicant puts forward in his application for relief were before the court members, the convening authority, or the SECAF.  Whatever the truth about the applicant’s marital relationship, the explanation given in his application for his unconcealed fraternization with his subordinate, obstruction of justice, and blatant disregard of several lawful orders of no-contact, is no justification for his actions.  Applicant’s previous service record was before the court and it is reasonable to conclude that, but for his record, his sentence would have been more severe.  The applicant’s crimes simply cannot be reconciled with a general discharge as he seeks.

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

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 7 Nov 03 for review and comment within 30 days.  To date, a response has not been received.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to warrant granting the applicant a measure of relief based on clemency.  A majority of the Board believes that the long-term impact of the applicant’s dismissal from the Air Force is disproportionate to the offenses he was convicted of.  Additionally, the majority believes that the applicant’s 12 years of exemplary service provides a sufficient basis to grant clemency.  Given the stigma and consequences of a court-martial conviction, the loss of a once promising Air Force career, and the time spent in confinement, albeit short, an upgrade to a general discharge based on clemency in no way diminishes the message that has been sent regarding the inappropriateness of the applicant’s actions.  Rather, the majority notes that the applicant has endeavored to lead a productive life since leaving the Air Force but has been stymied by the far-reaching effects of the dismissal documented in his records.  The majority of the Board views clemency as a reasonable action that will allow the applicant to lead a productive life and provide for his family.  Therefore, the majority recommends that the applicant’s records be corrected as indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 21 August 2000 he was discharged from the Air Force by General Court Martial Order Number 11, dated 3 August 2000, with service characterized as general (under honorable conditions).

_________________________________________________________________

The following members of the Board considered this application in Executive Session on 7 January 2004, under the provisions of AFI 36-2603:

By majority vote, the Board voted to correct the records, as recommended.  Mr.   voted to deny and has attached a minority report.  The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Aug 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 23 Oct 03.
    Exhibit D.  Letter, SAF/MRBR, dated 7 Nov 03.
    Exhibit E.  Minority Opinion.

                                   

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD
                                          FOR CORRECTION OF MILITARY RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of XXXXXXXXXXX, XXX-XX-XXXX

	    On 7 January 2004, the Board considered and denied an application for correction of military records pertaining to subject applicant.  The majority of the Board voted to grant the applicant’s request for a clemency upgrade of his dismissal to a general (under honorable conditions) discharge.  While I understand the Board’s rationale to grant clemency on the grounds that the applicant has already been sufficiently and appropriately punished and the desire to not have this one mistake continue to impact his life and future, I cannot agree with that decision.  The applicant pleaded guilty as charged at his court-martial.  He did so on the basis of a sentencing agreement that limited the time that he would be in confinement.  I have to believe that the applicant knew at the time of his plea the limiting impact his conviction would have on his life and future earning potential.

	    I cannot support a decision to grant for the following reasons.  First, as a captain with    12 years experience, the applicant fully knew that his actions were against Air Force regulations.  Second, while he contends that his actions did not impact his unit’s performance, morale, or reputation, he ignores the serious nature of his offense.  For a captain with 12 years experience and an aircraft commander, his act of fraternization with a 19-year-old airman, reflects a flagrant disregard for the good order and discipline of his unit.

	    Finally, and most disturbing, are the actions of the applicant once his improprieties were brought to the attention of his chain of command.  He left his superiors no course of action other than court-martial.  After the investigation was started and through the course of the case, the applicant continued his relationship with the airman.  He had ample opportunity to stop his actions and avoid the serious consequences he eventually suffered.  In my opinion he showed no respect for his unit, his Commander, or the Air Force by continuing the relationship.  In fact, he flaunted the relationship to the point that he actually moved in to the same household with the airman and two of her female enlisted friends.

	    Although the applicant’s request is made on the basis of clemency, it has only been a little over three years since his dismissal.  It is my understanding that, generally, this Board weighs heavily the amount of time that has passed as well as an applicant’s post-service activities in determining whether to grant clemency in requests for discharge upgrades.  In this case, the majority is basing their decision to grant clemency almost solely on the adverse impact the applicant’s sentence is having on his ability to earn a livelihood.  To grant clemency at this point undermines the board of officers that determined the applicant’s actions warranted the tough punishment they meted out.

							

AFBCMR BC-2003-02937

MEMORANDUM FOR THE CHIEF OF STAFF

	Having received and considered the recommendation of the Air Force Board for Correction of Military Records and under the authority of Section 1552, Title 10, United States Code (70A Stat 116), it is directed that:

	The pertinent military records of the Department of the Air Force relating to XXXXXXXXX, XXX-XX-XXXX, be corrected to show that on 21 August 2000 he was discharged from the Air Force by General Court Martial Order Number 11, dated 3 August 2000, with service characterized as general (under honorable conditions).