RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2007-02720
		INDEX CODE:  110.02
	 	COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be changed to a general (under honorable conditions) discharge.

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APPLICANT CONTENDS THAT:

Although there were African American officers that could have been selected for his court-martial, none were; therefore, his trial was not fair and just. 

In regards to the timeliness of his application, the applicant states some documents were recently located and he wanted to ensure his life was correct before applying. 

In support of his request, applicant provided a copy of his current job offer, a statement in his own behalf, authentication documents from his record of trial, a promotion certificate, character letters, college admission letters, a copy of his court-martial order, a description of his general court-martial panel, and documents from the Florida Department of Highway Safety and Motor Vehicles.

The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant entered the active duty Air Force on 27 Oct 99 and was progressively promoted to the grade of airman first class.  

On 19 Feb 03, the applicant received an Article 15, Record of Nonjudicial Punishment, with a reprimand for using his Government Travel Card for personal use.  In addition, he was reduced to the grade of airman first class, ordered forfeiture of $764 per month for two months, and 45 days extra duty.  However, the forfeiture of pay was suspended until 18 Aug 03.  

On 5 Feb 04, he was convicted by a general court-martial comprised of officer members.  He was charged with one count of attempted larceny (depositing an $80,000 counterfeit check into his own account with the intent to make wrongful withdrawals there from), larceny (wrongfully obtaining $2,000 from a fraudulent deposit), and uttering falsely made checks with the intent to defraud (the $80,000 check involved in the attempted larceny and the $2,000 check involved in the completed larceny).  He was sentenced to a bad conduct discharge, 16 months confinement, and reduction to airman basic.

The convening authority waived $1,193.40 pay per month of mandatory forfeitures for six months in favor of the applicant’s wife and children.

On 20 Oct 05, the Air Force Court of Criminal Appeals (AFCCA) affirmed the findings and sentence.  On 12 Apr 06, and after completing the appellate review process, the AFCCA denied the applicant’s petition for further review.

The applicant was discharged on 19 Jun 06 with a bad conduct discharge. 
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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the request.  The applicant’s contentions are unsupported and without merit.

The applicant does not assert factual innocence and maintains that he accepts full responsibility for his role in the crimes he committed.  He provides no evidentiary support for his claim that the convening authority’s action amounted to a deliberate, systematic and improper exclusion of potential court members on the basis of race.  He does not articulate any particular prejudice to his trial rights attributable to the absence of African-American members.  He submits a number of character references that indicate he is a caring and responsible parent, worker and friend, with a positive attitude towards life, and a strong drive to provide a better future for his children through hard work and further education.

The applicant’s allegation that he was unfairly prejudiced by the absence of African-American court members was first raised on appeal.  In addressing that claim, the AFCCA stated that “although a military accused does not have the right to a court panel composed of a cross-section of a military community, he does have a right to (court) members who are fair and impartial.” 

The applicant makes no claim of factual innocence with respect to his convictions.  In the sentencing and clemency phases of his court-martial, he accepted responsibility for his role in the crimes committed.  He admitted that he knowingly acted as a front-man for others in a scheme to defraud.  In furtherance of that scheme, he deposited thousands of dollars in counterfeit checks in bank accounts created by him for that purpose and then wrongfully made or attempted to make withdrawals from those accounts in a misguided effort (recognized only in hindsight) to better his desperate financial situation through fraud.

The applicant has supplied no evidence that the 18 AF/CC improperly excluded qualified personnel from the selection process.  Instead he makes a broad assertion that because no member detailed to his court-martial was African-American, the convening authority improperly excluded African-Americans from consideration as members.  As a general principle, it is proper to assume that a convening authority is aware of his duties, power and responsibilities, and performs them satisfactorily.  United States v. Townsend, 12 MJ 861,862 (AFCMR 1981).  In the absence of any evidence to the contrary, we will not assume that the convening authority in this case improperly excluded qualified personnel, including African-Americans, from the selection process.  The applicant has failed to satisfy this burden.  US v. XXXXXX, supra, at 3-4.  

The applicant’s mere allegation of impropriety in this regard is no more persuasive today, in this application for relief to the Board, than it was in 2005 when it was rejected by the courts.  Naked speculation was not then and is not now a substitute for evidence.  

Clearly, given the overwhelming evidence adduced at trial (including video of the applicant in the bank making a fraudulent transaction) and the applicant’s post-trial admission of guilt, the applicant has failed to demonstrate that the absence of African-American court members was either improper or resulted in any unfairness in the proceedings.

To characterize the applicant’s conduct as bad is to do no more than speak the hard but necessary truth.  The maintenance of good order and discipline requires no less.

The AFLOA/JAJM complete evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 5 Oct 07 for review and comment within 30 days.  As of this date, this office has not received a response.

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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 its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  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-2007-02720 in Executive Session on 28 November 2007, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/atchs, dated 22 Aug 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLOA/JAJM, dated 18 Sep 07.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Oct 07.