RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00847
		INDEX CODE:  134.00

	XXXXXXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

The Special Court-Martial held on 21-22 Jun 01 be found void and of no legal merit and/or all detrimental action taken by the sentence be expunged from his military records.

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APPLICANT CONTENDS THAT:

The appointed commanders involved in his court-martial did not have legal jurisdiction or court-martial authority.  In effect, his special court-martial was improper and not applied in accordance with the Uniform Code of Military Justice (UCMJ) and the Rules for Court-Martial (RCM).  There were several serious procedural errors in the handling of his special court-martial.

In support of his appeal, applicant submitted a personal statement, with documents from his military personnel records; copies of Freedom of Information Act (FOIA) responses from the Defense Finance and Accounting Service (DFAS), dated 22 Aug 02, and 11th Wing, dated 10 Dec 02, and a letter to his member of congress, dated 12 Mar 04.

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

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STATEMENT OF FACTS:

On 2 May 83, the applicant contracted his initial enlistment in the Regular Air Force, in the grade of airman basic (E-1).  He served on continuous active duty and entered his last enlistment on 13 Oct 98.  His highest grade held was technical sergeant.  

On 13 Mar 01, court-martial charges were preferred against the applicant.  He was charged with failure to go, willful disobedience of orders, and dereliction of duty in violation of Articles 86, 90 and 92, UCMJ, respectively.  By memorandum dated 30 Mar 01, the Commander, Fifth Air Force, forwarded the charges preferred against the applicant to the 18th Wing Commander for disposition.  Applicant was attached to the 18th Wing for UCMJ and adverse administrative purposes and was subject to the authority of the 18th Wing Commander.

On 19 Jun 01, the charges were referred to a special court-martial.  Applicant waived his right to object to proceeding to trial within the period of three days after service of the charges as required by the UCMJ, and requested to proceed immediately.  He also waived his right to an Article 32 hearing as well as his right to the appointed Article 32 Investigating Officer (IO) sitting as his judge at the bench trial.  He elected to be represented by a military counsel of his own choosing, and by a civilian defense counsel he hired independently.  He also entered into a pretrial agreement that limited the punishment that could be approved in return for his agreement to plead guilty to the charges and specifications.  Pursuant to his pleas, applicant was found guilty of all charges and specifications.  He was sentenced to reduction in grade to senior airman (E-4) and confinement for 60 days.

On 30 Jun 03, applicant was honorably released from active duty and retired effective 1 Jul 03, in the grade of senior airman.  Effective 18 Jun 2013, he will be advanced to the grade of staff sergeant on the USAF Retired List by reason of completing a total of 30 years active service plus service on the retired list on 17 Jun 2013.  He was credited with 20 years and 11 days of active duty service (excludes time lost for confinement from 22 Jun 01 through 9 Aug 01).

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed this application and recommended denial, stating in part, the applicant’s contentions were without merit.  Applicant raised several issues in an attempt to support his argument that the court-martial was procedurally infirm.  Of those issues, four were pre-trial questions involving the military justice process and one in regard to his post-trial confinement at a US Navy Brig.  They gave a chronology of the events which preceded the applicant’s court-martial.

They state if a case goes to trial, the service member is represented by his defense counsel.  He has a right to a speedy trial within 120 days of the preferral of charges.  He may request to be tried by military judge alone or by a panel of officers sitting as a jury.  After consultation with both counsels, applicant requested trial by a military judge.  His request was made both verbally and written before the judge after his civilian defense counsel questioned the judge.  Moreover, both he and counsel were aware at the time of the election, that the trial judge had been designated as the Article 32 Investigating Officer in the hearing that was never held.

A military judge may 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 pleads guilty.  The military judge carefully explains, in detail, each element of the offense to the service member.  The service member must be convinced of his own guilt and must be able to describe to the military judge, all the facts necessary to establish guilt.  If any potential defense is raised by the service member’s account of the facts, or by other matters presented to the military judge, the military judge will explain such defense to the accused.  The military judge will not accept the plea unless the accused admits facts that negate the defense.  The military judge will also not accept the guilty plea unless he is convinced of the member’s guilt.  The applicant’s sworn rendition of the facts surrounding the criminal charges did not give rise to a defense or bring anything else to the military judge’s attention, which would make him reject the guilty pleas.  To the contrary, his sworn rendition of the facts established each and every element of each offense to which he pled guilty.

Following the court-martial, applicant and his attorney submitted numerous documents for the convening authority to consider.  After reviewing all of the documents, the convening authority approved the findings and sentence.  Applicant’s case was then reviewed by an independent judge advocate pursuant to Article 64, UCMJ.  In particular this review included conclusions as to whether the court had jurisdiction over the applicant, the charges and specifications stated offenses, and the sentence was within the limits prescribed as a matter of law.

Additionally, under 10 USC Section 1552(f), which amended the basic corrections board legislation, the AFBCMR’s ability to correct records related to courts-martial is limited.  Specifically, Section 1552(f) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ and correction of records related to action on the sentence of courts-martial for the purpose of clemency.  Apart from these two limited exceptions, the AFBCMR is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 50 (the effective date of the UCMJ).

A complete copy of the evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter, dated 23 May 04, he reiterated his original contentions and submitted several documents in support of his arguments. 

After his initial response, applicant provided several additional responses to support his arguments; the following letters, with attachments were submitted, with the dates listed:  24 May 04, 14 Jun 04, 24 Jun 04, 7 Jul 04, 4 Aug 04, (through his member of congress), and 10 Aug 04. 

Applicant’s complete responses, with attachments, are at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request an additional review was requested to consider the applicant’s additional responses.  AFLSA/JAJM considered the applicant’s additional arguments and concluded that based on the facts contained in their 16 Apr 04 memorandum, their decision remained unchanged.  

A copy of the evaluation is at Exhibit H.

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ADDITIONAL APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Applicant provided the conclusions to the additional evaluation reached by a military law specialist based on the guidelines and provisions of the UCMJ, Manuals for Court-Martial (MCM), and RCM.

Applicant’s complete response, with attachments, is at Exhibit J.

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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.  The applicant’s assertions that the appointed commanders involved in his court‑martial did not have legal jurisdiction or court-martial authority, that the court-martial was improper and not in accordance with the Uniform Code of Military Justice (UCMJ) and the Rules for Court-Martial (RCM), and that there were several serious procedural errors in the handling of his court-martial are duly noted.  However, we do not find these assertions, in and of themselves, sufficiently persuasive to override the rationale provided by the Associate Chief, Military Justice Division (AFLSA/JAJM).  Therefore, we agree with the recommendation of AFLSA/JAJM and adopt its rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has been the victim of either an error or an injustice warranting favorable action on his request.

4.  Furthermore, the Board’s authority to correct records related to courts-martial is limited.  Specifically, actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing authorities and action on the sentence of the court-martial for the purpose of clemency.  This Board is without authority to reverse, set aside or otherwise expunge a court‑martial from an individual’s record.

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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-2004-00847 in Executive Session on 17 November 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Mar 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLSA/JAJM, dated 16 Apr 04.
    Exhibit D.  Letter, SAF/MRBR, dated 30 Apr 04.
    Exhibit E.  Letters, Applicant, dated 23 May 04, 
                14 Jun, 24 Jun, 7 Jul, and 4 Aug 04, w/atchs.
    Exhibit F.  Letter, AFBCMR, dated 6 Aug 04.
    Exhibit G.  Letter, Applicant, dated 10 Aug 04, w/atchs.
    Exhibit H.  Letter, AFLSA/JAJM, dated 26 Aug 04.
    Exhibit I.  Letter, AFBCMR, dated 13 Sep 04, w/atch.
    Exhibit J.  Letter, Applicant, dated 27 Sep 04, w/atchs.