RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03536
		INDEX CODE: 110.00
		COUNSEL: NONE
		HEARING DESIRED: NO

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APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to a general (under honorable conditions) discharge.

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APPLICANT CONTENDS THAT:

His discharge was not based on his many years of service but on a one time incident.  Statements made about the character of his service by the officer who preferred charges were in error and were not retracted until after his court-martial.  His service record was never brought up because his counsel was trying to prove there was a mistaken identity.  He served his country proudly and his duty performance was commendable.  His medical health is worsening from injuries received while on active duty and he believes he could have had a medical discharge if not for the erroneous statements.

In support of his request, applicant provided documentation extracted from his military personnel records, and documentation associated with his court-martial action and subsequent appeals.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant contracted his initial enlistment in the Air Force on 22 Sep 75.  He was progressively promoted to the grade of technical sergeant.

On 6 Feb 92, applicant was tried by a general court-martial for committing an indecent act upon the body of a female less than 16 years of age, with intent to gratify his sexual desires.  He pled not guilty and was found guilty of the charge.  He was sentenced to a dishonorable discharge, confinement for three years, reduction to airman basic and forfeiture of $300 pay per month for three years.  The court-martial approving authority approved his sentence on 21 Apr 92.  On 12 May 94, he was discharged from the Air Force.  He served 18 years, 4 months, and 13 days on active duty.

Pursuant to the Board's request, the Federal Bureau of Investigations provided an investigative report.  A copy of the investigative report was forwarded to the applicant on 6 Mar 08, for review and comment within 30 days.  As of this date, this office has received no response.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends the application be time-barred.  If considered on its merits, JAJM recommends denial.  JAJM states in the applicant's appeal to the Air Force Court of Military Review, he argued first that the evidence was factually insufficient to support a finding of guilty.  The court acknowledged that the child's testimony "was not free from difficulties and contradictions," but determined the evidence was sufficient to support a finding of guilty.  He also argued that the military judge erroneously denied a challenge for cause of a member of the panel who made a joking comment hoping to be bumped as a panel member because he had work to do.  The judge denied the challenge because it had not been determined the officer had anything else to do other than his normal duties and the officer appeared to be willing to devote the necessary time and energy to the case.  Applicant's defense counsel declined further opportunity voir dire of the officer.  He also argued that his defense counsel was ineffective because he failed to present evidence of the child's propensity to lie by the use of affidavits of other adult family members.  The appellate court determined the decision not to mount an emotional attack on the child's credibility was a tactical one, based in part on the unwillingness of family members to "drive the family apart" and that defense counsel's decision to assert a mistaken identity defense, rather than attack the child's credibility had a clear rational basis.  

Under Title 10 U.S.C. Section 1552(f) (2) the AFBCMR's ability to correct records related to courts-martial is limited to action on the sentence of courts-martial on the basis of clemency.  The AFBCMR is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 90.  

The applicant is not contending any specific actions have been taken by reviewing authorities that require correction of his record.  He sets forth little basis for clemency.  It is true that he was prosecuted and discharged for a "one-time incident," not for his "many years of service."  This is not unfair, any service member convicted of an equally serious "one-time incident" should expect to be discharged with the same characterization, no matter how stellar the member's past performance.  Records indicate that the officer who preferred the charges on the applicant before the court-martial later issued a letter entitled "Correction of Preference of Charges," dated 21 Mar 92, in which he states that the applicant's duty performance had been "less than acceptable for someone of his rank and experience."  Apparently, the officer did not correct the statement until after the court-martial.  Nevertheless, JAJM advises that referral sheets are not presented to panel members, and thus could have had no impact on the outcome of the court-martial.  

The complete JAJM 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 21 Dec 07 for review and comment within 30 days.  As of this date, this office has received no 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 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 error or injustice.  After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust.  We believe that the service characterization he received is supported by the gravity of his offense.  In this regard, we are in agreement with the assessment of the Air Force office of primary responsibility and agree with its recommendation.  Therefore, we find no basis upon which 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-2007-03536 in Executive Session on 8 Apr 08, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to Docket Number BC-2007-03536 was considered:

    Exhibit A.  DD Form 149, dated 15 Nov 07, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Investigative Report #108755NA2, dated 28 Feb 08.
    Exhibit D.  Letter, AFLSA/JAJM, 6 Dec 07.
    Exhibit E.  Letter, SAF/MRBR, dated 21 Dec 07.