RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03674 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: 1. His Bad Conduct Discharge (BCD) be upgraded to honorable. 2. His record be corrected to reflect that the sexual assault charge was not with a child under the age of 16. 3. The charge of assault be dropped or changed to a lesser offense. ________________________________________________________________ THE APPLICANT CONTENDS THAT: He was not guilty of carnal knowledge but the statement of charge implies that he had knowledge of her true age. She told him that she was 16 years old at the time that he met her which was not true. According to United States V. Davis, 15 MJ567 (ACMR 1983) where there is consent, there can be no unlawful force or violence; therefore, there can be no criminal act of assault and battery. Regardless of the wavering testimony given there was no other act but the acts that were confined to the sexual intercourse were consensual. His defense lawyer read him the charges and told him that he was looking at a maximum sentence of 20 years. He thought that the only thing he would have to fight was the testimony against him; however, he did not know that he would also have to contend with the fact that he was African American and she was Caucasian. He never threatened or laid hands on her with the intent to harm her during or after they had consensual intercourse. She made many different testimonies and at one point stated that she did not know what happened or could not remember. The court knew about her previous lifestyle and mental issues prior to him meeting her that night and despite her wavering testimony decided to convict him anyway. She received a rape kit the morning after the alleged rape and there were no signs of force. His only regret is that he had intercourse with someone he did not know well; was not married to and did not take her home soon enough. Race did play a big part in his conviction. Both he and his defense lawyer were male African Americans against two Caucasians. Restoring his good name is all that he is asking. He has lived his life as an upstanding citizen since this incident. He worked at the Armed Forces Bank as a teller for one year, sold real estate, served faithfully in his church and worked for a transit company for 15 years. He has been married for 11 years and has four children. In support of his appeal, the applicant provides a personal statement, certificates of recognition, character reference letters, civilian performance record and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 6 Apr 93, the applicant enlisted in the Regular Air Force. In Aug 96, the applicant was tried by general court-martial and was found not guilty of carnal knowledge, but guilty of assault. The applicant was sentenced to a BCD, confinement for 1 year, forfeiture of all pay and allowances, and reduction to the grade of airman basic. Subsequently, the Court of Appeals for the Armed Forces (CAAF) directed that any forfeitures collected prior to the convening authority taking action, and any pay and allowances withheld because of a premature reduction in grade, be restored. On 20 Aug 98, the convening authority approved the adjudged sentence consistent with the CAAF’s decision. On 27 Aug 98, the applicant was discharged, with a reason for separation of conviction by court-martial (other than desertion), and a bad conduct character of service. He was credited with 4 years, 8 months and 18 days of active duty service. ________________________________________________________________ THE AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, stating, in part, that after considering the evidence, the general court-martial found the applicant guilty of assault meaning that it found the touching was not consensual. There is nothing at this point that would warrant overturning the court’s findings. Moreover, there is nothing to support the argument that race played a factor in this case. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 6 Dec 13 for review and comment within 30 days. As of this date, no response has been received by this office (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 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. We find no evidence that indicates the applicant’s service characterization, which had its basis in his conviction by general court-martial 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 have considered the applicant's overall quality of service, the general court-martial conviction which precipitated the discharge, and the seriousness of the offense to which convicted. However, we do not find the evidence presented is sufficient for us to conclude that the applicant’s post-service activities overcome the misconduct for which he was discharged. Therefore, based on the available evidence of record, 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-2013-03674 in Executive Session on 7 Aug 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 31 Jan 13, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 26 Nov 13. Exhibit D. Letter, SAF/MRBR, dated 6 Dec 13.