RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02742 COUNSEL: HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: 1. As a matter of clemency, the Board correct his military record to reflect a sentence of no punishment, remove the DD Form 214, Certificate of Release or Discharge from Active Duty, and he be reinstated in the Air Force in the grade of E-4. 2. His bad conduct discharge (BCD) be upgraded to honorable. 3. In the alternative, his DD Form 214, be corrected to reflect the following: a. Block 4a, Grade, Rate or Rank to read “SrA”. b. Block 4b, Pay Grade to read “E-4”. c. Block 12b, Separation Date This Period to reflect a date of separation (DOS) of “October 2008”, his discharge date. d. Block 12c, Net Active Service This Period to reflect “8 years, zero (0) months and zero (0) days”. e. Block 12h, Effective Date of Pay Grade to reflect “November 2002”. f. Block 18, Remarks to reflect “no remarks”. g. Block 24, Character of Service to read “honorable”. h. Block 26, Separation Code to reflect a code consistent with his “expired term of service (ETS)”. i. Block 27, Reentry Code to reflect “1”. j. Block 28, Narrative Reason for Separation to read “ETS”. k. Block 29, Dates of Time Lost during this Period to reflect “zero (0)”. 4. On 28 July 2011, the applicant through his attorney amended his request to include the following changes: c. Block 12b, Separation Date this Period to reflect a date of separation (DOS) of “11 July 2006”, his expiration term of service (ETS). d. Block 12c, Net Active Service This Period to reflect “6 years, zero (0) months and zero (0) days”. e. Block 12h, Effective Date of Pay Grade to reflect 28 December 2002, the date he was advanced to E-4. _________________________________________________________________ APPLICANT CONTENDS THAT: His court-martial conviction is invalid in light of the Court of Appeals for the Armed Forces (CAAF) decision in United States v. SrA Jones, 68 MJ 465 (2010). In Jones, the court ruled that lesser-included offenses are valid only if they meet a strict elements test: the lesser-included offense must have its elements in common with the greater offense. Under this ruling, his court-martial conviction for indecent acts is invalid because it does not have all its elements in common with rape. The Jones ruling must be applied retroactively to correct his record and erase his sentence, or at the very least remove any of its administrative consequences. He is an “unfortunate victim of timing” because the law changed two years after his appeal in a manner which would have eliminated his conviction altogether. The 652-day delay in his appeal from his sentence to the Air Force Court of Criminal Appeals (AFCCA) decision resulted in him suffering numerous financial and social hardships as a result of him having to register as a sex offender, including losing his apartment and employment. In support of his request, the applicant provides a five page legal brief with attachments and a personal declaration. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 12 July 2000, the applicant enlisted in the Regular Air Force. On 13-16 June 2005, the applicant was tried by a general court- martial. He was accused of three specifications of rape of three different women in violation of Article 120, of the Uniform Code of Military Justice (UCMJ). One specification was dismissed after arraignment and the applicant was found not guilty of another. For the other specification, the applicant was found not guilty of rape but guilty of the lesser-included offense of indecent assault. He was sentenced to a BCD, confinement for one year and reduction to the grade of airman basic. On 17 October 2005, the convening authority approved the findings and sentence as adjudged, except the applicant’s confinement was reduced to a period of five months. On 30 March 2007, the AFCCA found the panel had been improperly instructed that indecent assault was a lesser-included offense of rape, but affirmed the applicant’s conviction and sentence for indecent acts instead. On 15 February 2008, the CAAF denied the applicant’s request to review his case, making the findings and sentence in his case final and conclusive under the UCMJ. On 9 June 2008, the applicant’s BCD was ordered to be executed and the applicant was discharged with a BCD on 1 October 2008. On 23 March 2010, a supplementary general court-martial order was issued properly reflecting the modification in the applicant’s conviction, thereby relieving him of the requirement to register as a sex offender. Pursuant to the Board’s request, the Federal Bureau of Investigations (FBI), Clarksburg, WV, provided a copy of an Investigative Report. On 6 June 2011, a copy of the Investigative Report and a request for post-service information were forwarded to the applicant for response within 30 days. As of this date, no response has been received by this office (Exhibit C). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to upgrade his discharge to honorable. JAJM states clemency may be granted under 10 U.S.C. 1552 (f) (2), and while the applicant does provide some arguments for clemency, it is ultimately not warranted in this case. The applicant has identified an error related to the instructions given the panel at his trial concerning the lesser-included offense of rape, which was addressed on appeal by AFCCA. This error was also pointed out to the convening authority by the applicant’s military defense counsel during clemency, and the convening authority subsequently reduced the applicant’s confinement from one year to five months. The applicant’s argument that he is an “unfortunate victim of timing” and that under Jones, he should have no conviction or sentence is unsound. The Jones case does not act retroactively and nothing in the language of that decision suggest the court intended for it to overturn the verdict in the countless cases where the military member was convicted of a lesser-included offense. The applicant’s conviction for indecent acts was validly based on the current law at the time. Furthermore, the applicant is not a victim of timing or bad luck. The applicant’s position rests on an assumption, which he makes entirely in his favor to the exclusion of the corresponding one that voids his position. He assumes that if he were tried today, he would not be convicted again of indecent acts because he assumes it would not have been charged. However, after Jones, the government must now charge cases differently to include traditional lesser-included offenses as separate charges. If the applicant were going to trial post-Jones, he would have faced additional charges of indecent acts to cover all relevant theories of criminality for this same conduct underlying the rape offenses. The Jones decision does not in any way exonerate the applicant, but probably places him exactly where he is today: with a conviction for indecent acts. A BCD was and continues to be part of a proper sentence and properly characterizes his service. The decision of whether to grant relief for the 652-day delay in his appeal is a matter best left to AFCCA, who is in the best position to evaluate what is an unreasonable or prejudicial delay in the applicant’s case. AFCCA declined any additional sentence relief, and in light of the convening authority’s decision to reduce his confinement, no further clemency is justified by this case. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veteran’s Benefits program was to express thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy action and suffering financial hardships. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. This makes sense if the benefit program is to have any real value. It would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime, such as the applicant while on active duty. The complete JAJM evaluation is at Exhibit D. HQ AFPC/DPSOS recommends denial of his request to change his character of service. DPSOS states based on the documentation on file in the applicant’s master personnel records, the discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. Furthermore, the applicant did not submit any evidence or identify any errors or injustices in the discharge processing. The complete DPSOS evaluation is at Exhibit E. DPSOE recommends denial of his request to change his grade and defers to the recommendation of JAJM for applicant’s clemency request. The complete DPSOE evaluation is at Exhibit F. HQ AFPC/DPSOA recommends denial of his request to change his RE code. DPSOA states the applicant’s RE code of 2L, which denotes “Civil court charges pending for an offense for which the Manual of Court Martial (MCM) authorizes confinement for the same or most closely related offense, or court-martial charges have been preferred, or court-martial action is under appellate review” should have been changed to 2B “Separated with a general or under-other-than-honorable-conditions (UOTHC) discharge” when his BCD was executed. The complete DPSOA evaluation, with attachment, is at Exhibit G. HQ AFPC/DPSOTED reviewed the applicant’s record and concluded his lost time should be charged based on his five month confinement. The complete DPSOTED evaluation is at Exhibit H. HQ AFPC/DPSOY recommends denial of the applicant’s request to change Blocks 12b, 12c and 18 on his DD Form 214. DPSOY states all processes for creation of the DD Form 214 were followed. Blocks 12b-12c are correctly reflected with the applicant’s affirmed case dated 9 June 2008, General Court-Martial Order (GCMO) Number 5 issued by AFMC with his lost time in confinement. Block 18 is correctly reflected per his “Required Excess Leave” memo dated 17 October 2005, issued by AAC/JA and signed by the applicant. The applicant’s excess leave began 19 October 2005 to 1 October 2008. The DD Form 214 was consistent with the procedural and substantive requirements of the instructions. The complete DPSOY evaluation is at Exhibit I. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: The applicant through his attorney responded to the advisory opinions. Counsel notes the Air Force argues the applicant “assumes that if he were tried today, he would not be convicted again of indecent acts because he assumes it would not have been charged.” His argument does not rest upon how the Air Force chooses to charge people today, but rather, if his case as it existed at the AFCCA came before that court today, the court would be required to set aside his conviction and there would be no punishment flowing from that conviction. Never argued that Jones “acts retroactively” or that the court intended for it to overturn the verdict in the countless cases where the military member was convicted of a lesser-included offense.” Although the government attempts to recast the applicant’s argument, his position was and remains that if his case were decided by the AFCCA post-Jones, his conviction for the indecent acts would have been set aside. And since it was the only charge remaining on the charge sheet, there would have been no punishment. Finally, the Air Force argues clemency in this case would be unfair to those individuals who honorably served their country while in uniform. This argument, of course, ignores Congress’ intent in providing the Board with the authority to grant clemency in the first instance. If Congress did not believe that some military members convicted at court-martial were deserving of clemency from this Board, and that a consequence of clemency might be an entitlement to veterans’ benefits that the member otherwise would not have had, it would not have given the Board the power to take action on the sentence of a court- martial for purposes of clemency. The applicant’s complete submission, with attachments, is at Exhibit L. _________________________________________________________________ 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 an error or injustice. We note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency. Counsel believes the applicant’s case warrants consideration on the basis of clemency due to the applicant having to register as a sex-offender for 22 months resulting in a hardship. He also states if the case were decided by the AFCCA post-Jones, his conviction for the indecent acts would have been set aside and there would have been no punishment at all. After careful consideration of the available evidence we do not find these arguments sufficiently persuasive to disturb the actions of the reviewing officials in this case or to override the rationale provided by the Air Force offices of primary responsibilities (OPRs). In this respect, we note the applicant’s discharge was based on his trial and conviction by a general court-martial and during clemency consideration the convening authority actually reduced his sentence from one year to five months. Moreover, we do not believe a sufficiently lengthy period of time has elapsed since the applicant's discharge to warrant further clemency at this time. Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice. We note that DPSOY will publish and provide the applicant with a corrected copy of his DD Form 214 to reflect an RE code of “2B.” In the absence of evidence to the contrary, we find no basis to recommend granting any relief beyond that granted administratively. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ 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. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2010-02742 in Executive Session on 11 Aug 11, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-02742 was considered: Exhibit A. DD Form 149, dated 28 July 2010, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report, dated 17 May 2011. Exhibit D. AFLOA/JAJM, Letter, dated 14 October 2010. Exhibit E. AFPC/DPSOS, Letter, dated 15 February 2011. Exhibit F. AFPC/DPSOE, Letter, dated 28 March 2011. Exhibit G. AFPC/DPSOA, Letter, dated 9 March 2011, w/atch. Exhibit H. AFPC/DPSOTED, Letter, dated 4 April 2011. Exhibit I. AFPC/DPSOY, Letter, dated 31 May 2011. Exhibit J. SAF/MRBC, Letter, dated 27 May 2011. Exhibit K. SAF/MRBC, Letter, dated 7 June 2011. Exhibit L. Applicant’s Rebuttal, Letter, 12 July 2011, w/atchs. Panel Chair