RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00159
		INDEX NUMBER:  126.00
		COUNSEL:  None

		HEARING DESIRED:  No

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APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 19 Dec 03 be set aside.

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APPLICANT CONTENDS THAT:

He was found guilty of the offense of sodomy under the wrong article of the Uniform Code of Military Justice (UCMJ) in violation of the preemption doctrine.  He should have been charged under Article 125 vice Article 134.

In support of his appeal, applicant provides a copy of the Article 15, a copy of a letter sent to his squadron commander from his area defense counsel (ADC) contesting the applicant being charged under Article 134 of the UCMJ vice Article 125.

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

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STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 29 Jul 98 and was progressively promoted to the grade of staff sergeant  (E-5).  On 11 Dec 03, his squadron commander notified him that he was considering punishing him under Article 15 of the UCMJ for the alleged offense of committing sodomy, in violation of Article 134 of the UCMJ.  The applicant accepted proceedings under Article 15 and attached a written presentation.  On 19 Dec 03, the commander determined that the applicant had committed one or more of the alleged offenses.  The commander imposed punishment consisting of reduction to the grade of senior airman (E-4), 14 days of extra duty, and a reprimand.  The applicant appealed the punishment.  The appellate authority denied the applicant’s appeal.

A review of the applicant’s enlisted performance reports reveals overall ratings of “5” (applicant’s EPR closing out after the Article 15 is not yet included in the personnel data system).
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial of the applicant’s request.  The applicant contends he should have been charged under Article 125 of the UCMJ (sodomy).  The applicant’s ADC also referenced the U.S. Supreme Court case, Lawrence and Garner v. Texas, in a written response to the Article 15, contending that the Supreme Court held that it was unconstitutional for the government to criminalize consensual sodomy.  This view is inaccurate as the Court held that states could not make private consensual sexual conduct a crime and focused on the fact that the consensual sexual act was done in private.  In the applicant’s case, he and another Air Force member participated in sexual acts with the victim in this case.  Moreover, it has not been determined what effect this case will have on UCMJ Article 125.  Conduct that is not considered criminal for the society at-large may be considered criminal in the military setting.  Whether or not the Lawrence case results in a change to Article 125 remains to be seen.

Applicant’s contention that the preemption doctrine prohibited the government from charging his misconduct under Article 134 is without merit.  The doctrine of preemption prohibits the use of Article 134 to punish crimes specifically delineated in the punitive articles.  Applicant was charged with the crime of committing an act with the victim that was prejudicial to good order and discipline.  The act happened to be what has been defined as sodomy.  Article 125 does not require the additional element that the conduct be prejudicial to good order and discipline.  There is case law that states that adding an element to a punitive article, or removing an element from a punitive article, and charging it under Article 134, and thereby converting an offense already delineated into an Article 134 offense under the code is prohibited by the preemption doctrine.  However, in this case, the government did not take a sodomy offense and add an element in aggravation (that it was prejudicial to good order and discipline) in order to create another offense.  As can clearly be seen from the reprimand included as punishment for the Article 15, the emphasis was that the applicant’s actions were prejudicial to good order and discipline in that he engaged in various acts with the spouse of a fellow airman and neighbor who was deployed.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Article 15, the applicant states that the facts put forth in the evaluation contain some falsifications.  Specifically, the applicant states he was not present when the other Air Force member had sexual intercourse with the victim and he did not know the victim prior to the incident, so he could not have known of her inexperience with alcohol in order to take advantage of her.

The applicant disagrees with the evaluation statement “Based on Applicant’s view, the Government could not charge his acts under Article 125 or 134, and thus Applicant should not have received an Article 15.”  Applicant states that he does not contend that he should not have gotten an Article 15 for the alleged offense.  However, he does contend that there was an error in accordance with the law when his Article 15 was administered.  Applicant states that he feels as if he has been victimized by the whole issue and process.

Applicant discusses a statement signed by his Air Force Attorney regarding written testimony he made to the appellate authority regarding a telephone conversation between he and the applicant’s squadron commander.  The squadron commander acknowledged to the applicant’s counsel that even if the wrong charges were filed against the applicant, he would have been found guilty either way.

Applicant’s complete response is at Exhibit E.
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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 timely filed.

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 and adopt their rationale as the primary basis for our conclusion that the applicant has not been the victim of an error or injustice.  Since there are pending legal matters regarding Article 125 of the UCMJ, we believe that it would premature to grant the applicant’s request based on the legal arguments he has raised.  Additionally, we believe that the applicant’s conduct was definitely prejudicial to good order and discipline and do not find the actions of his commander to be arbitrary or capricious in charging him with this offense.  We further note that the decision to accept proceedings under Article 15 was the applicant’s and that he could have elected to have the offense for which he was charged resolved by court-martial, perhaps a more appropriate forum to consider the legal issues he raises.  Therefore, in the absence of 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 Docket Number BC‑2004-00159 in Executive Session on 10 June 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Jan 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 26 Mar 04.
    Exhibit D.  Letter, SAF/MRBR, dated 2 Apr 04.
    Exhibit E.  Memorandum, Applicant, 16 Apr 04.

                                   Panel Chair