RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05042 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. Her DD Form 214, Certificate of Release or Discharge from Active Duty, be amended to reflect the periods she was confined to prison and appellate leave. 2. Her General Court-Martial (GCM) conviction, as it pertains to Charge I: Making a false official statement, and its specifications, be set-aside. APPLICANT CONTENDS THAT: She was on active duty during her confinement and appellate leave; however, these periods are not reflected on her DD Form 214. In support of her requests, the applicant provides copies of her DD Form 2717, Voluntary/Involuntary Appellate Leave Action; Proof of Appellate Leave Status memorandum, GCM order, memorandums and various other documents associated with her requests. Her complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant is a former enlisted member of the Air Force Reserve. According to GCM Order Number 39 dated 7 June 2010, while on active duty orders, the applicant was tried by general court- martial. On 12 March 2010, a military judge found her guilty of two specifications of making a false official statement, in violation of Article 107, Uniform Code of Military Justice (UCMJ), and one specification of larceny of money, military property of the United States, of a value of approximately $122,000, in violation of Article 121, UCMJ. The military judge sentenced the applicant to be discharged from the Air Force with a bad conduct discharge, to be confined for 18 months, to forfeit all pay and allowances, and to be reduced to the grade of E-1. According to the applicant’s CMS Form 2098, Duty Status Change, electronically signed on 15 July 2010, the applicant’s duty status changed from “Present for Duty” to “Military Confinement - Sentenced Prisoner/30 days or More” effective 12 March 2010. In a letter dated 7 October 2010, the Air Force Clemency and Parole Board considered and approved Mandatory Supervised Release (MSR) for the applicant. The applicant’s term of supervision was effective 14 December 2010 and would expire on 11 September 2011, unless sooner suspended or revoked for violation of its conditions, or otherwise terminated by competent authority. The applicant was also advised and acknowledged that she understood that for pay purposes, she was in excess leave status during the period of supervised release. According to her AF Form 899, Request and Authorization for Permanent Change of Station – Military, (Special Order T-0421, dated 7 December 2010) the applicant received PCS orders to her leave address in South Carolina. The reason for the PCS was for MSR status. The order stated that she would remain at her leave address until released from MSR status or discharged. The order also stated that her DD Form 214 would not be issued until the final GCM order was executed. According to a DD Form 2717, dated 13 December 2010, the applicant was placed on appellate leave effective 14 December 2010. She was advised that if she had no accrued leave, the entire period of appellate leave would be unpaid excess leave. She was further advised that she would remain on appellate leave until she was finally discharged. According to DD Form 2718, Inmate’s Release Order, dated 14 December 2010, the applicant was released from confinement effective 14 December 2010. According to GCM Order Number 29 dated 7 April 2011, on 3 February 2011, the Air Force Court of Criminal Appeals (AFCCA) set aside and dismissed Charge II, the specification and charge of larceny, of a value of approximately $122,000, in violation of Article 121, UCMJ. However, the AFCCA affirmed the guilty finding with respect to Charge I, the false official statement charge. The convening authority determined a rehearing to be impracticable and approved a sentence of “no punishment.” The order also stated that all rights, privileges and property of which the accused was deprived by virtue of the sentence that was set aside were to be restored. On 17 January 2012, the Air Force produced a DD Form 214 in response to the court action noted above. The DD Form 214 indicated that the applicant had been separated with an honorable discharge on 24 March 2010, having served 2 years, 11 months and 21 days on active duty. Her narrative reason for separation was “Completion of Required Active Service.” According to the AFCCA Opinion of the Court dated 6 September 2013, on 5 January 2012, the United States Court of Appeals for the Armed Forces (CAAF) set aside the 3 February 2011, AFCCA decision to affirm the guilty finding with respect to Charge I, the false official statement charge, because the applicant and her counsel were not properly served with the staff judge advocate recommendation and afforded an opportunity to respond. On 21 March 2012, the AFCCA again approved a sentence of “no punishment.” On 22 March 2013, the CAAF again set aside the AFCCA's decision and returned the case to the Judge Advocate General of the Air Force for submission to the convening authority. The convening authority rescinded the 21 March 2012 action and substituted a new action approving “the findings of guilty as to Charge I and the two specifications for which a finding of guilty was adjudged by the trial court.” On 6 September 2013, AFCCA affirmed the findings and sentence. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to set aside her GCM conviction, as it pertains to Charge I, making a false official statement, and its specifications. In accordance with 10 USC § l552 (f) (2), the Board does not have the authority to set aside the applicant's conviction. Nevertheless, the Board may take “action on the sentence of a court-martial for purposes of clemency.” The complete JAJM evaluation is at Exhibit C. ARPC/DPTS recommends denial of the applicant’s request to amend her DD Form 214 to reflect the periods she was confined to prison and while she was on appellate leave. The applicant was confined [examiner’s note: confinement here includes time actually in prison plus time spent on MSR] during the whole period from 12 March 2010 through 2 February 2011. In accordance with AFI 36-2134, time spent in confinement [including time spent on MSR] is non-creditable service (i.e., lost time). While a DD Form 214 is not recommended, the applicant’s NGB Form 22 could be amended to capture her appellate leave. The applicant was issued an NGB Form 22 for the period 26 April 2002 through 11 September 2011. The closeout of this NGB Form 22 would be amended to 6 September 2013 to accommodate the appellate leave. The complete DPTS evaluation is at Exhibit D. ? APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Due to the egregious injustice the court-martial left on her military career, family and good name, she respectfully requests the remaining federal convictions be dismissed. When the larceny charge and other specifications were dismissed the government should have re-visited the remaining false official statement charge with the new understanding that there was no malicious intent to deceive the Air Force. In further support of her requests, the applicant provides a personal statement, photographs, and various other documents related to her appeal. Her complete response, with attachments, is at Exhibit F. 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 setting aside Charge I and its specifications. We note this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction. Therefore, no action is required on this portion of her application. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. We note that AFPC/DPTS recommends denial of the applicant’s request to amend her DD Form 214. However, the applicant’s punishment as to Charge II was set aside, therefore, as noted in GCM Order Number 29, dated 7 April 2011, all rights, privileges and property of which the applicant was deprived by virtue of the sentence should be restored. According to the CMS Form 2098, dated in July 2010, the applicant was placed in confinement on 12 March 2010. According to her DD Form 2718, she was released from confinement on 14 December 2010. Additionally, the Clemency and Parole Board letter dated 7 December 2010, reflects that she was placed on MSR effective 14 December 2010. As such we recommend the applicant’s records be corrected to reflect the confinement and MSR periods as periods of active duty. Further, we believe the applicant’s record should be corrected to show that on 3 February 2011, the date after she was released from MSR until 6 September 2013, the date the AFCCA affirmed the findings and sentence, she was on appellate leave without pay and points. Accordingly, in the interest of justice, we recommend the applicant’s record be corrected to reflect active duty credit for the period of 12 March 2010 to 6 September 2013. We believe correcting the records in this manner provides the applicant full and fitting relief. In view of the above, we recommend the applicant's records be corrected to the extent indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT, be corrected to show that: a. She was not released from active duty on 12 March 2010, but on that date, she was continued on active duty until 6 September 2013, at which time she was released from active duty. b. On 3 February 2011, she was placed on appellate review leave until 6 September 2013, without pay and allowance, or leave accrual. The following members of the Board considered AFBCMR Docket Number BC-2013-05042 in Executive Session on 12 November 2014 and 20 April 2015, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary pertaining to AFBCMR Docket Number BC-2013-05042 was considered: Exhibit A. DD Form 149, dated 10 October 2013, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 27 May 2014. Exhibit D. Letter, ARPC/DPTS, dated 3 July 2014, w/atchs. Exhibit E. Letter, SAF/MRBR, dated 4 August 2014. Exhibit F. Letter, Applicant, undated, w/atchs. 1 2