RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03424

						COUNSEL:  NONE

						HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT:

1. His bad conduct discharge (BCD) be upgraded to an honorable discharge.

2. His deserter status be upgraded in accordance with 2-2 (E) (3), “mistake of fact.”

APPLICANT CONTENDS THAT:

His BCD discharge, a vindictive prosecution, was the result of the Air Force (AF) failing to follow AF regulations, and failing to obey laws of the Uniform Code of Military Justice (UCMJ). 

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 28 Apr 71.

On 27 Jun 91, the applicant was found guilty of wrongful use of cocaine, in violation of Article 112a, UCMJ.  He was sentenced to six months confinement, and reduction to the grade of staff sergeant (E-5).  

On 2 Dec 91, General Court-Martial Order No. 11, dismissed the charges of the 27 Jun 91 findings, due to error prejudicial to the substantial rights of the applicant in the course of the legal examination under Article 69 (a).  

On 4 Feb 92, the applicant was found guilty of wrongful use of cocaine, in violation of Article 112a, UCMJ.  Specification that he did, within the territorial limits of the United States, between on or about 22 Jun 91 and on or about 28 Jun 91, wrongfully use cocaine.  He was sentenced to two months confinement, forfeiture of $500 per month for two months, and reduction to the grade of E-5.  

On 4 Sep 92, the applicant was found guilty of wrongful use of cocaine, in violation of Article 112a, UCMJ.  Specification that he did, within the territorial limits of the United States, between on or about 29 Jan 92 and on or about 4 Feb 92, wrongfully use cocaine.  He was sentenced to a BCD, confinement for six months, and reduction in grade to Airman Basic (E-1).  

On 23 Jan 94, the applicant was found guilty of wrongful use of cocaine, in violation of Article 112a, UCMJ, and desertion, in violation of Article 85, UCMJ.  Specification that he did, on or about 3 Sep 92, without authority and with intent to remain away therefrom permanently, absent himself from his unit, and did remain absent in desertion until he was apprehended on or about 26 Jun 93.  He did, within the territorial limits of the United States, between on or about 19 Jun 93 and on or about 26 Jun 93, wrongfully use cocaine.  He was sentenced to a BCD and confinement for eight months.  

On 1 Nov 94, General Court-Martial Order No. 1, ordered the BCD be executed.  

On 22 Dec 94, the applicant was furnished a BCD discharge, and was credited with 23 years, 7 months, and 24 days of active service.   

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFLO/JAJM recommends denial indicating there is no evidence of an error or an injustice.  The application was not filed within three years of the discovery of the alleged error or injustice.  Notwithstanding timeliness, they opined there was no evidence or allegation of error or injustice that tends to undermine the sentences adjudged at the applicant’s last three courts-martial.  The issues raised by the applicant in support of his requested relief are without merit.  

With regard to the applicant’s assertion of a mistake of fact as to desertion, that defense would be applicable solely to the element of that offense which requires the Government to prove, beyond a reasonable doubt, that the applicant, at the time his absence began or at some time during the absence, intended to remain away from his or her place of duty permanently.  No other element of the offense of desertion under Article 85 requires knowledge or intent, and mistake of fact is, therefore, immaterial to those elements.  Given the applicant’s admittedly conscious decision to absent himself from his place of duty (a United States federal courtroom) during the middle of his third court-martial and remain absent for approximately eight months, ignorance or mistake regarding his intent to remain away does not fit with the facts of the case.  Regardless, mistake of fact as to any material element of an offense can be raised at trial as an affirmative defense.  Either the applicant raised this defense and was convicted despite of it, or he did not, in which case the mistake of fact defense was ultimately waived.  The applicant does not raise any new allegation of mistake of fact which might tend to undermine the result of his fourth court-martial.  

The other two contentions (the AF’s failure to follow AFR 30-2 regarding proper uses of urine specimens collected for various reasons and the alleged conflict of interest presented by a former Appellate Defense Division Chief acting as a military judge in the applicant’s fourth court-martial) were raised by appellate defense counsel on appeal.  The arguments presented by the defense on those topics were fully illuminated in the appellate brief that the applicant attached to this DD Form 149.  Ultimately, those arguments were considered by the Air Force Court of Military Review and rejected based upon the facts and a review of relevant law.  They note that court records revealed that the applicant was aware of the military judge’s former job at Appellate Defense during his fourth court-martial and did not object to having him serve as a military judge in the case.  The punishments adjudged and approved by the convening authority in each of the applicant’s last three courts-martial were within the range of permissible punishments.  There is no evidence or allegation that the applicant was not afforded all of his procedural due process rights at trial and on appeal in these cases.  In accordance with 10 USC 1552(f), the Board has no authority to overturn a court-marital conviction, but may, on the basis of clemency, adjust the sentence.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant refutes virtually every point made by the OPR and argues that the Air Force Evaluation was as expected, and again, they are wrong.  He reiterates his DD Form 149 contentions, and states that he looks forward to providing the Board (again requesting to appear before the Board) with clear and precise justification and what caused this great miscarriage of justice, vindictive and judicial conduct of those who were supposed to protect him.  

A complete copy of the Applicant’s response to the Air Force Evaluation is at Exhibit E.  

FINDINGS AND CONCLUSIONS OF THE BOARD:

1.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  After a careful review of the applicant's contentions to include his response to the Air Force Evaluation, documentation submitted in support of the request, and the available evidence of record, we are not convinced the applicant has provided sufficient evidence for us to conclude that he is the victim of an error or injustice.  We also note the applicant did not file the application within three years after the alleged error or injustice was discovered, or should have been discovered, as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603.  While the applicant claims a date of discovery of less than three years prior to receipt of the application, we believe a reasonable date of discovery was more than three years prior to receipt of the application.  Therefore, because we do not find it would be in the interest of justice to recommend granting relief, and the applicant has offered no plausible reason for the delay in filing the application, we cannot conclude it would be in the interest of justice to excuse the failure to timely file the application.  Accordingly, we find the application untimely.

2.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved.  Therefore, the request for a hearing is not favorably considered.

THE BOARD DETERMINES THAT:

The application was not timely filed and it would not be in the interest of justice to waive the untimeliness.  It is the decision of the Board, therefore, to reject the application as untimely.

The following members of the Board considered AFBCMR Docket Number BC-2015-03424 in Executive Session on 21 Jun 16 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03424 was considered:

	Exhibit A.  DD Form 149, dated 4 Aug 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 8 Feb 16.
	Exhibit D.  Letter, SAF/MRBR, dated 14 Mar 16.
	Exhibit E.  Letter, Applicant, dated 8 Apr 16.