RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01648 XXXXXXX COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. His discharge be changed to a Reserve retirement or a medical retirement. 2. His General Court-martial (GCM) be stricken from his record. 3. His grade of Master Sergeant (MSgt) be reinstated. ________________________________________________________________ THE APPLICANT CONTENDS THAT: The information obtained by the Air Force Office of Special Investigations (AFOSI) and used against him at his GCM was obtained illegally in violation of United States Code. AFOSI fabricated charges in order to make the case against him a court-martial event. The Article 134 charges failed to identify a terminal element that would establish a violation. When confronted by AFOSI he was advised that someone had filed a complaint against him of sexual assault. Under those circumstances, he willingly provided a statement and implicated himself without knowing that the statements he made would be used against him. Nonetheless, he was wrong and took responsibility for his actions which led to the GCM. He went into the GCM without a deal and did not appeal his conviction or seek clemency. He had wrongly assumed that his best interests were being looked after and that the rule of law would prevail. He did not realize until after he was discharged that numerous laws were broken and that his rights were violated under the UCMJ and United States Code. The Investigation Officer (IO) for his Article 32 hearing was biased toward the government due to his status as an Air Force Reserve Individual Mobilization Augmentee (IMA) legal officer. The Administrative Discharge Board (ADB) violated Air Force Instruction by not having a member of a reserve component as a voting member. The ADB instructions were biased toward a finding to recommend discharge. Had the ADB not been allowed to happen, he would have been placed on the Temporary Disability Retired List (TDRL). His GCM conviction reflected a sentence more along the lines of an Article 15 than a court-martial. The judge even recognized that his mistakes were isolated in nature and that he should remain in the Air Force. Upon discharge, he immediately filed for an upgrade to his discharge, with the Air Force Discharge Review Board (AFDRB), which was granted. Although he didn't receive an "honorable" upgrade, he did get a "general" from "Under Other Than Honorable Conditions (UOTHC)." His upgrade was a result of errors and injustices because his commander and his staff forced him out without following the Air Force Instructions (AFIs). As of 10 Mar 10, he was also eligible for a Reserve retirement since he completed 20 years of service. In Oct 12, he met with the AFDRB in the hopes of getting his UOTHC discharge upgraded and to address these inequities. At the AFDRB hearing, he was advised that the only matters that were to be discussed would be the discharge actions itself, not the events leading up to it. In Feb 13, he finally received his discharge upgrade to general, under honorable conditions, not an honorable which he was seeking. Despite not getting an honorable rating, he did get an upgrade and that upgrade would not have happened had issues or errors not been present in his discharge processing. The Department of Veterans Affairs (DVA) granted him a service connected disability rating of 60 percent in Dec 12. He believes there are enough errors and violations of his rights to justify his requests. The excerpt of his records, AFIs, Department of Defense Instructions (DODIs) and other documents provides a basic foundation for proving the errors and injustices he found. He is asking that the Board correct his military record to remove in its entirety the conviction he received under the GCM, pay him separation pay, reinstate his rank to E-7 and allow him to either be medically retired, as was already approved prior to the administrative discharge or transfer him into the Retired Reserve pending further legal action. He listed numerous reasons as to why he should receive the requested relief. In support of his appeal, the applicant provides a personal statement; copies of his discharge package; medical review; excerpts from his AFOSI investigation; legal court case, and various other documents, including several character statements. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 30 Jul 09, the applicant, then a MSgt assigned to Air Force Eastern Recruiting Squadron, United States Air Force Reserve, was tried by a GCM at McGuire Air Force Base, NJ. He pled guilty and was found guilty of sending obscene material and sexually explicit pictures via his government computer, using his government computer to store this obscene material, failing to maintain high standards of conduct and professionalism with another member, and of wrongfully attempting to develop a personal, intimate, or sexual relationship with a different member, all in violation of Article 92, Uniform Code of Military Justice (UCMJ); and of adultery with two women in violation of Article 134, UCMJ. The applicant was sentenced to three months hard labor without confinement and a reduction to the grade of Technical Sergeant (TSgt/E-6). On 31 Aug 09, the convening authority approved the findings and sentence as adjudged. The applicant's case was reviewed pursuant to Article 69, UCMJ and was found to be supported by law. Therefore, the Judge Advocate General did not direct review by the Air Force Board of Review. On 20 Jan 10, the applicant faced an ADB. The discharge board recommended the applicant be separated with an UOTHC. On 21 Jan 10, the applicant applied for Reserve retirement; however, Air Force Reserve Recruiting Service (AFRCRS) and the Air Force Reserve Commander AFRC/CC recommended the applicant’s retirement request be denied. On 26 Jul 10, the applicant’s medical condition was reviewed by the Informal Physical Evaluation Board (IPEB), the IPEB recommended the applicant be medically retired with a compensable percentage for disability of 40. Because the applicant had been recommended for discharge by the ADB a dual- action process was referred to the Secretary of the Air Force Personnel Council (SAFPC). On 22 Sep 10, SAFPC recommended the applicant’s retirement request be denied and he be discharged with an UOTHC service characterization. On 8 Oct 10, the applicant was discharged with an UOTHC. On 4 Oct 12, the applicant appeared before the AFDRB who reviewed the evidence and upgraded the applicant's discharge characterization to a general discharge. ________________________________________________________________ THE AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, stating, in part, that the Board does not have the authority or discretion to reverse a court- martial conviction. Under 10 U.S.C. § 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)(l) 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). Prior to accepting his guilty plea, as evidenced by the record of trial, the military judge ensured the applicant understood the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea was accepted by the court. The military judge explained the elements and definitions of the offenses to which the applicant pled guilty, and the applicant explained in his own words why he believed he was guilty. The court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The applicant made an unsworn statement on his behalf and simply stated he was sorry. The court-martial took all of these factors into consideration when imposing the applicant's sentence. This decision was reviewed by the convening authority in accordance with Article 60, UCMJ and by a judge advocate under Article 69, UCMJ. The findings and sentence were approved and found to be supported in law. The complete JAJM evaluation is at Exhibit C. AFPC/DPFD recommends denial, stating, in part, the preponderance of evidence reflects that no error or injustice occurred during the disability process or the rating applied at the time of the board. DPFD notes that when SAFPC reviewed the case as a dual action in regards to being the final separation authority they had the option to retain the member on active duty, direct the medical retirement or uphold the administrative discharge. In the SAFPC memo dated 22 Sep 10, they upheld the administrative discharge action. The complete DPFD evaluation is at Exhibit D. The BCMR Medical Consultant recommends denial of the applicant’s request for a medical retirement. The Medical Consultant finds no new or extenuating information, within the supplied record, that was not available to the previous Boards. He notes that the applicant, on 21 Jan 10, applied for retirement via Virtual Personnel Center-Guard Reserve (vPC-GR), requesting a retirement date of 15 Mar 10. Department of Defense Instruction (DODI) 1338.32: E3.P3.5.1. Presumption of Fitness: Application states, except for service members previously determined unfit and continued in a permanent limited duty status, service members who are pending retirement at the time they are referred for physical disability evaluation enter the Disability Evaluation System (DES) under a rebuttable presumption that they are physically fit. The DES compensates disabilities when they cause or contribute to career termination. Continued performance of duty until a service member is approved for length of service retirement creates a rebuttable presumption that a service member’s medical conditions have not caused career termination. The applicant, by virtue of his application for retirement date of 15 Mar 10 was pending retirement and therefore falls under the “Presumption of Fitness” period. The applicant’s medical issues were not the cause of his career termination, but rather it was his misconduct. His Commander’s Impact letter offers insight into possible motivation that the applicant’s medical condition did not impact this unit’s effectiveness. The BCMR Medical Consultant agrees with his Primary Care Manager’s (PCM’s) recommendation that his medical condition warrants a Medical Evaluation Board (MEB) consideration. However great care should be exercised to ensure the MEB is not being used to circumvent the administrative discharge process. Furthermore the applicant’s request for retirement conspicuously coincides [1 day later] with his discharge board which recommended an administrative discharge. The Medical Consultant notes that the MEB processes all started shortly after the applicant’s notification of an administrative discharge and after his application for retirement. The applicant has not met the burden of proof of error or injustice that warrants the desired change of the record. The actions of the previous boards were consistent with the procedural and substantive requirements of the regulations. The applicant provided no facts warranting the changes requested. The applicant was under the “period of presumed fitness” and his medical conditions played no part in his career termination. The complete Medical Consultant evaluation is at Exhibit E. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: His medical conditions existed long before any of these issues with the GCM or subsequent administrative discharge action took place. Any connection between the two is merely an attempt to infer an ulterior motive on his part. The commander’s impact letter was for the MEB process, and should have been free of any comments outside of that. Had he not been persecuted by his commander and been the victim of an abuse of power, he would not have been discharged and the MEB recommendation would have been processed. The DRB may not have given him an honorable discharge because of the GCM, but they did concur with him that rules were broken and that his rights were violated. Otherwise they would not have upgraded him from an UOTHC to a general discharge. So any argument that anyone has against him at this point in time needs to address his requests as if he had not been forcibly discharged. Because anything else would be avoiding the fact that he fought and won the administrative discharge that force him out of the Air Force. Also, keep in mind, the GCM verdict did not result in a discharge or jail time. The reason is the case against him only existed because he admitted to what he did under false pretense. The AFOSI conducted an illegal wiretap of his emails, off-base without a warrant. They also told a witness what to say when he didn’t do what they wanted to do, which brought up the issue of entrapment, which the IO brushed aside. According to the AFI, his ADB panel was supposed to have at least one member of the reserve as part of it, and this was not done. The legal office on McGuire AFB and the Air Force Reserve Command did all they could to ensure that he was punished as harshly as they could, regardless of what the rule of law was. Some of the same people who are devising opinions on his case are probably the same people who were involved in his dual- action processing. Ironically, some of the DRB members were also involved in his dual-action processing. If he had not been forced out in Oct 10 by the ADB, he would have been medically retired and placed on the TRDL at 40 percent disability. Or, would also had the option to transfer into the Retired Reserve, something by law that he should be allowed to do now; however, the Air Reserve Personnel Center (ARPC) is blocking it. Either way, he would have the pride of being a retired member of the armed forces, having served 20 years. The applicant states the DRB’s upgrade of his discharge cannot be overlooked. He was a victim of an abuse of power. In an electronic-mail, the applicant notes that he does not believe that his dual-action process was handled properly. The applicant’s complete response, with attachment, is at Exhibit G. ________________________________________________________________ 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 to warrant disturbing the record. 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. Regarding his request for a medical retirement and transfer to the Retired Reserve, the applicant has not provided substantial evidence showing that SAFPC’s decision to uphold the administrative discharge review action was in error. Regarding is request to reinstate his grade to MSgt, the applicant has not provided any evidence which would lead us to believe his demotion to the grade of TSgt was unduly harsh, or disproportionate to the offenses committed. The applicant’s case has undergone an exhaustive review by the Air Force Offices of Primary Responsibility (OPRs) and we did not find the evidence provided, sufficient to overcome their assessment of the case. Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of having suffered either an error or injustice. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in 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-2013-01648 in Executive Session on 20 Feb 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Mar 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 10 May 13. Exhibit D. Letter, AFPC/DPFD, dated 10 May 13. Exhibit E. Letter, BCMR Medical Consultant, dated 8 Jun 13. Exhibit F. Letter, SAF/MRBR, dated 11 Jun 13. Exhibit G. Letter, Applicant, undated, w/atch. 1 2