RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02725 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His DD Form 214, Certificate of Release or Discharge from Active Duty, be expunged from his military records and reissued in accordance with Air Force Instruction (AFI) 36-3202, Separation Documents. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. His court-martial in January 2002 was invalid due to it occurring after his expiration of term of service (ETS) on 28 December 2001. AFI 36-3208, Administrative Separation of Airman, paragraph 2.8, indicates that airmen should not be retained beyond their ETS involuntarily for completion of involuntary discharge processing. 2. His DD Form 214 should have been accomplished at his original ETS in accordance with AFI 36-3202, Table 2, Rule 1, to wit: To prepare and distribute the DD Form 214 if the applicant was separated from a period of active duty because of completion of service as a member of the Regular Air Force. However, the Air Force prepared and distributed a DD Form 214 after the applicant’s ETS transpired on 28 Dec 01. In support of his appeal, the applicant provides copies of his DD Form 214, documents extracted from his military personnel records, a decisional document from the United States Court of Federal Claims, and an extract from AFI 36-3208, Administrative Separation of Airmen. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 2 February 1993, the applicant contracted his initial enlistment in the Regular Air Force. He served as a Supply Management Journeyman. The applicant was charged with one specification each of the following: housebreaking, assault with a dangerous weapon likely to produce death or grievous bodily harm, larceny, desertion, unlawfully transporting a stolen firearm in interstate commerce, and four specifications of forgery. He pled not guilty to housebreaking and assault with a dangerous weapon. He pled guilty to the remaining charges and specifications. He was tried by general court-martial on 10-11 January 2001. He was found guilty of all charges and specifications and sentenced to a dishonorable discharge, confinement for 10 years and reduction in grade to airman basic. On 3 May 2002, the convening authority approved the findings and sentence as adjudged. On 20 February 2004, the Air Force Court of Criminal Appeals found the evidence factually insufficient to support the applicant’s conviction of assault with a dangerous weapon, but found it factually sufficient only as to the lesser included offense of assault committed with an unloaded firearm. The other findings were affirmed by the Court. The Court reassessed the applicant’s sentence to reduction to the grade of airman basic, confinement for nine years, and a dishonorable discharge. On 21 July 2004, the United States Court of Appeals for the Armed Forces denied the applicant’s request for review of his conviction, therefore, making the findings and sentence final and conclusive. His discharge was ordered on 30 August 2004. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. The applicant alleges error in the fact of his court-martial, but does not allege error or injustice related to the conduct of the court-martial or his appeal. The applicant’s allegation of error stems from the fact that his ETS was due on 28 December 2001, and his court-martial did not occur until January 2002. He cites AFI 36-3208, paragraph 2.8, in support of his allegation; however, the applicant’s allegation of error is unfounded. AFI 36-3208 involves administrative separation of Airmen, which is a different issue than his involvement with the military justice system and subsequent dishonorable discharge. The applicant's commander preferred charges against him on 20 September 2001, well in advance of his ETS. As a result, the applicant was properly restricted from separating at his ETS due to his pending court-martial. Pursuant to AFI 36-3208, paragraph 1.9, the applicant was separated on 1 October 2004, which is after the completion of appellate review of his case. The Board’s authority to correct records related to court-martial is limited. Specifically, section 1552(f)(1) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ. Additionally, section 1552(f)(2) permits the correction of records related action on the sentence of the court-martial for the purpose of clemency. While clemency may be granted, the applicant did not provide justification in support of his request. Additionally, to grant clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress' intent in setting up the Veterans 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 sentence of general court-martial. 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’s while on active duty. The AFLOA/JAJM complete evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant disputes the validity of the AFLOA conclusion that the cited provisions of AFI 36-3208 somehow do not apply to punitive actions under the UCMJ. AFI 36-3208 imposes prohibition against involuntary discharge processing after the ETS has transpired and a mandates that an airman’s period service has expired. In support of this contention, he cites what he believes is a similar court case. As for AFLOA’s contention that relief in this case is limited to actions of reviewing authorities in accordance with 10 USC 1552(f)(1), the injustices perpetuated against the applicant under AFI 36-3202 and AFI 36- 3208 constitute actions by reviewing authorities and the Board therefore has the authority to take corrective action. The applicant’s complete submission, with attachments, is at Exhibit E. _________________________________________________________________ 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 an error or injustice. The applicant contends that his court-martial was invalid because it occurred after his ETS. We took notice of the applicant's complete submission, to include his rebuttal response, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our decision the applicant was not the victim of an error or injustice. The applicant’s central argument appears to be that certain provisions of AFI 36-3208 should have precluded his retention beyond his established ETS; however, we are not convinced that he was inappropriately retained beyond his original ETS to face court-martial charges. In this respect, we note the comments by AFLOA/JAJM indicating that the provisions of AFI 36-3208 cited by the applicant pertain only to administrative separations. While the applicant takes issue with this opinion on rebuttal, we do not find his assertions or the documentation provided sufficient to conclude that corrective action is warranted. Charges were preferred against the applicant by his commander prior to his ETS and, as a result of his pending court-martial, he was appropriately restricted from separating at his ETS in accordance with the governing instruction. Therefore, we find no basis upon which to favorably consider this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2011-02725 in Executive Session on 22 Mar 12, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Forms 149, dated 12 Jul 11 and 31 Dec 11, w/atchs. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 16 Aug 11. Exhibit D. Letter, SAF/MRBR, dated 2 Sep 11. Exhibit E. Letter, Applicant, dated 9 Sep 11, w/atchs. Vice Chair