RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00602
		INDEX CODE:  105.00
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The injustices relating to his court-martial conviction be corrected.
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APPLICANT CONTENDS THAT:

He was wrongfully accused and prosecuted.  The payment of “dive” pay was an error; however, he did try to make restitution of the money overpaid him but the finance office refused the repayment.  Such overpayment was a common problem affecting many personnel on the base.

In support of the application, the applicant submits a copy of the general court-martial order, privacy act release form, and support letter from a member of Congress.

The applicant's complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:

On 13 October 1969, the applicant enlisted into the Regular Air Force at the age of 19 in the grade of airman basic for a period of four years.  He was progressively promoted to the grade of Master Sergeant.

On 14 January 1976, the applicant received Notification of Intent to Impose Nonjudicial Punishment for operating a vehicle while drunk.  He was reduced to the grade of Sergeant and ordered to forfeit $100.00 pay for two months, but the execution of the portion of the punishment, which provided for reduction to the grade of Sergeant and forfeitures in excess of $25.00 of pay for two months was suspended.

On 24 July 1985, the applicant pled and was found guilty by a general court-martial of wrongful appropriation of U.S. currency of a value of about $3,450.00 from on or about 1 August 1983 to on or about 30 June 1985.  He was sentenced to perform hard labor without confinement for three months, forfeit $150.00 pay per month for five (5) months, and reduction to the grade of Technical Sergeant (E-6).  The applicant retired from active duty effective 31 March 1986.  He had served 20 years, 3 months, and 2 days on active duty.
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states the applicant must file an application within three years after the error or injustice was discovered, or with due diligence.  It is JAJM’s opinion that nothing has changed since the applicant’s trial, therefore the applicant was clearly aware of the purported error or injustice at the time of his court-martial in 1985.  Furthermore, the application is untimely, and the substance of the application is without merit.  

JAJM indicated the application does not specify the relief the applicant seeks, but to the extent the application is a request for the removal of the applicant’s court-martial conviction, such relief is not an available remedy.  JAJM specifically noted that, according to 10 USC 1552(f), the Board is not empowered to set aside or reverse the findings of guilty by a court-martial.

JAJM stated that a guilty plea is the strongest proof of guilt known to the law.  A military judge can only accept a service member’s plea of guilty if it is provident under military law.  In order to be provident, the service member must admit every element of the offense to which he/she pleads guilty, as explained by the military judge.  The applicant indicated he took no action because he believed the finance office would correct the error and recoup the money through offset against other pay.  He admitted under oath he knew he was not entitled to the extra money.  The applicant also signed a stipulation of fact stating he knew he was being paid special duty pay that he was no longer qualified to receive.

JAJM states there was no error or injustice related to the sentence.  The applicant was tried in the appropriate forum (general court-martial) in accordance with the offense.  The maximum punishment authorized for the offense for which the applicant was convicted was a bad conduct discharge, confinement for six months, forfeiture of all pay and allowances, and reduction to the grade of airman basic.  The sentence given the applicant was well within the prescribed limits and was appropriate punishment for the offense committed.  The applicant had the assistance of counsel.  The extenuating and mitigating matters were considered in review of the sentence.  The applicant was afforded all rights granted by statue and regulation.  JAJM opinions there is no reason to exercise clemency in this case as the applicant has identified no error or injustice related to his prosecution or sentence, and presents insufficient evidence to warrant any relief.  The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the advisory opinion was forwarded to the applicant for review and comment within on 16 April 2004.  As of this date, this office has received no response (Exhibit D).

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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 probable error or injustice.  The applicant’s discharge was based on his trial and conviction by a general court-martial.  While we are precluded by law from reversing a court-martial conviction, we are authorized to correct the records to reflect actions taken by reviewing officials and to take action on the sentence of a military court based on clemency.  There is nothing in the available record that would cause us to disturb the actions of the reviewing officials.  Furthermore, we do not find clemency is appropriate in this case.  The record reveals that pursuant to his pretrial agreement and contrary to his present protestations of innocence, the applicant pled and was found guilty of the lesser offense of wrongful appropriation.  It appears the sentence of the military court was well within the maximum allowable for the offense of which he stood convicted.  Other than his own assertions, the applicant has provided no evidence showing the contrary was the case nor has he provided evidence that would support favorable action based on clemency.  Therefore, we agree with the assessment of the Air Force office of primary responsibility and adopt their rationale as our findings in the case.  In view of the above, the applicant’s request is not favorably considered.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of probable 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 this application in Executive Session on 29 July 2004, under the provisions of AFI 36-2603:
The following documentary evidence was considered in AFBCMR BC-2004-00602:

    Exhibit A.  DD Form 149, dated Feb 9, 2004, with attachments.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 9 April 04.
    Exhibit D.  Letter, SAF/MRBR, dated 16 April 04.