RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01933 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His dishonorable discharge be upgraded to an other than honorable conditions discharge [sic]. _________________________________________________________________ APPLICANT CONTENDS THAT: He only experienced trouble while he was in the military. His civilian record before and after his discharge is clean. He is a law-abiding citizen. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 12 Mar 02, the applicant enlisted in the Regular Air Force. On 11 Dec 04, he was tried by a general court-martial for two specifications of making false official statements; two specifications of rape; four specifications of indecent assault and four specifications of unlawful entry He pled not guilty to all the charges and specifications. The court found him guilty of two specifications of indecent assault and four specifications of unlawful entry. He was sentenced to a dishonorable discharge, confinement for four years, ordered to forfeit all pay and allowances and was reduced to the grade of airman basic. On 31 May 07, the Air Force Court of Criminal Appeals affirmed the applicant’s conviction and sentence. On 18 Dec 07, the United States Court of Appeals for the Armed Forces denied his petition for a review making the findings and sentence in his case final and conclusive under the Uniform Code of Military Justice (UCMJ). On 18 Jan 08, he was dishonorably discharged. He served 4 years, 1 month and 17 days on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request as untimely or on the merits. JAJM states under 10 United States Code (USC) Section 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts-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 to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of section 1552(f) is that the Board 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). JAJM notes the applicant offered no allegation of injustice; however, just requests his dishonorable discharge be upgraded. He alleges no error in the processing of the court-martial conviction against him. His record of trial shows no error in the processing of the court-martial. He pled not guilty at trial; nevertheless, the court adjudged guilt beyond a reasonable doubt based on the evidence presented by the prosecution. The evidence consisted of testimony of the victims as well as some of the applicant’s statements given under a rights advisement containing partial admissions to some of the alleged acts. The court received evidence in aggravation as well as in extenuation and mitigation prior to crafting an appropriate sentence for the crimes committed. Both the adjudged and the approved sentences were below the maximum possible sentence of a dishonorable discharge, 12 years confinement, total forfeiture of all pay and allowances and reduction to airman basic. The rule for Courts-Martial states that a dishonorable discharge “should be reserved for those who should be separated under conditions of dishonor.” It also indicates that a dishonorable discharge is more than a service characterization; it is a punishment for crimes committed while a member of the armed forces. The applicant’s sentence was well within the legal limits and an appropriate punishment for the offenses committed. JAJM opines 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. 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. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 27 Jun 12, for review and comment within 30 days. As of this date, this office has received no response (Exhibit D). _________________________________________________________________ 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. We note 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), our actions 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. We find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). We considered upgrading the discharge on the basis of clemency; however, after considering the applicant's overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offenses of which convicted, and the documentation pertaining to his post- service activities, we cannot conclude that clemency is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. _________________________________________________________________ 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 this application in Executive Session on 20 Feb 13, under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-01933: Exhibit A. DD Form 149, dated 2 Mar 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 19 Jun 12. Exhibit D. Letter, SAF/MRBR, dated 27 Jun 12. Panel Chair