RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03795

 						COUNSEL:    

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His grade of Master Sergeant (MSgt, E-7) be restored.  

APPLICANT CONTENDS THAT:

Counsel, on behalf of the applicant, states he was charged with violations of Articles 81, 92, 107 and 108 of the Uniform Code of Military Justice (UCMJ).  An Article 32 pretrial investigation was conducted and on 4 September 2012, the Investigating Officer (IO) concluded that charge 1, the sole specification of conspiracy, charge 2, specifications 1 through 5 for dereliction of duty, charge 3, specifications 2 and 3 for false official statement, and charge 4, specification 1 for loss of military property were not supported by the evidence and should not be referred to trial.  The IO further stated that while the remaining charges could be referred to a courts-martial, they recommended disposing of the allegations by Nonjudicial Punishment (NJP) given the special circumstances of the case.  

Despite the recommendations of the IO, on 9 October 2012, all charges were referred to a general courts-martial for disposition.  He pled not guilty to all charges and specifications.  He was found guilty of five specifications in violations of Articles 92, three specifications in violation of Article 107 and two specifications in violation of Article 108.  He was found not guilty of violation of Article 81 (conspiracy).  The applicant was reduced in grade to Staff Sergeant (SSgt, E-5) and clemency was not granted by the convening authority.  He retired honorably in 2013 for maximum time in service in the grade of SSgt.  

The insufficient evidence regarding the charged offenses, principles of sentencing and the Board’s other decision making factors suggest relief is appropriate.  Allowing the reduction in grade to stand is unnecessary and his grade of MSgt can be restored consistent with clemency.  The applicant understands the issues associated with “doing things the way they had been done in the past” and following the direction of superiors without question.  He recognizes he could have done more to avoid the appearance of impropriety.  As a result of the courts-martial conviction, he is aware to never place himself in a compromising employment position.

He served the majority of his career without incidence.  He performed the duties of a MSgt proficiently and competently.  His outstanding performance was erased by one event.  He has received reduced retirement pay and has been financially punished.  Failing to restore his grade at this point is excessive and unnecessary punishment based on the facts of the case.  

He was assigned to Headquarters Central Air Force (HQ CENTAF), Shaw AFB, SC as the Aircraft Generation Equipment (AGE) Quality Assurance Evaluator (QAE).  He was trained by the 20th Contracting Squadron on his responsibilities as a QAE.  An investigation into the allegations of misconduct found that the majority of alleged violations were not supported by the evidence and the IO recommended action other than referral to courts-martial based on lack of supervision, training and leadership.  He is not guilty of the offenses for which he was convicted and requests his grade of MSgt be restored.

In regards to violation of Article 92, UCMJ, specification 1, he was following the directions of his supervisor to make the shipment to the government contractor.  With respect to specification 2 that he failed to verify that the contractor was proposing fair and reasonable quantities of labor hours, neither he nor the contracting officers assigned to monitor the contract were trained to calculate labor hours.  In regards to specification 3, he was found guilty of negligently failing to integrate corrosion control technical order color change on an attrition basis.  During this time, the staff received conflicting and changing information on painting equipment prior to deployment.  Upon receiving guidance that the equipment had to be grey, they ensured the equipment was shipped in the proper color as directed.  In regards to specification 4, once they received the destination for the equipment, the contractor was informed and the equipment returned for delivery to the appropriate location.  He was attempting to improve and make more efficient a cumbersome and awkward process for refurbishment of equipment.  With regards to specification 5, he properly inspected the refurbished equipment.  Contracting officers were aware of their inspecting procedures.  All reports were turned in monthly but they could not go to the site to perform the inspections some months due to the mission.  However, the inspections and the records related to inspections were completed and he was present at the facility and AGE was properly inspected as required.

In regards to violation of Article 107, UCMJ, specification 1, QA reports were completed when he was present at the facility and inspections performed as required.  With regards to specification 2 and 3, he was never informed he was required to be physically present to inspect the refurbished property before paying the contractor.  They were trained that when the company sends the invoice stating the equipment was finished, the invoice was to be paid.  He was never told he had to go to the company on each and every occasion to inspect the property before the invoice was paid.  This was the training he received from the contracting officer and is stated in the Statement of Work (SOW).  There were no instances that he is aware of that the contractor submitted invoices and was paid for work that was not performed.

In regards to Article 108, he was found guilty of negligence in causing military property to be sold to a contractor.  He had no involvement with any military property being sold from one contractor to another at any time.  At the time of the alleged sale, he was not the QAE on the contract and had not been the QAE for over a year.  The property that was sold to the contractor was not identified on any government inventory as government property.  The charge is unsupported by the facts and is untrue.  With regards to specification 2, he had proper authority to complete the transactions. He did not make the decision to ship the property but was directed by leadership to complete it as he had been on previous occasions.   

His leadership and the contracting officers were aware of how business was being conducted.  There were three other QAEs, five contracting officers and one finance specialist who monitored this contract; however, he was the only individual held responsible and punished for the allegations.  He was never counseled, informed or directed that his actions were not in accordance with regulations or were not the common way of doing business.  He served honorably for 27 years and has always taken his duties seriously and completed them to the best of his abilities.

The IO’s report dated 27 August 2012, states without direct evidence of fraud and conspiracy on the part of the applicant, the charges that are left merit NJP at most.  The Air Force did not hold anyone else involved accountable for this poorly run program and the dereliction of duty on the part of this one Senior Noncommissioned Officer (SNCO) does not rise, without a rigorous attempt to correct his errors through disciplinary efforts and training to the level of a court-martial.

Since retiring from the Air Force, he has been caring for a 103 year old.  She is bedridden and he renders care by assisting with her activities of daily living.  He also serves as a mentor to elementary and high school students and young adults seeking to attend college.  As a mentor, he visits respective elementary and high schools and attends disciplinary hearings. He also participates in the local school district’s “Read to a Child Day” event and serves as a volunteer cook for many social and community events such as the elementary school’s career day program and community outreach operation which serves the homeless and the community.  He is a long time member of his church and serves on the scholarship ministry board which provides scholarships to deserving young people in their congregation.  He also serves in the church’s culinary ministry.  Although he was devastated by the events and the outcome of his court-martial, he has vowed to move on with his life, help others and continue to give his time and talents to his family, church and community.  He also recently completed the Lean Six Sigma certification and is in the process of enrolling in a Master’s in Business Administration (MBA) program.  

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

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 25 August 1986.

A general court-martial was convened 1 thru 4 April 2013.  General Court-Martial Order, Number 9, dated 10 June 2013, reflects the applicant was charged and found guilty of the following:

	Charge II: Article 92, Specification 1:  On or about 1 August 2004 to on or about 30 September 2004 he was derelict in the performance of his duties in that he willfully failed to refrain from shipping AGE to the contractor prior to the company receiving a government contract as it was his duty to do so.  Plea:  Not Guilty.  Finding:  Not guilty of willful dereliction but guilty of negligent dereliction.

	Charge II, Article 92, Specification 2:  On or about 1 September 2005 to on or about 31 December 2009 he was derelict in the performance of his duties in that he willfully failed to verify the contractor was proposing fair and reasonable quantities of labor hours to refurbish AGE as it was his duty to do.  Plea:  Not Guilty.  Finding:  Guilty.

	Charge II, Article 92, Specification 3:  On or about 1 September 2006 to 30 September 2007 he was derelict in the performance of his duties in that he willfully failed to integrate a corrosion control technical order color change on an attrition basis as it was his duty to do so.  Plea:  Not Guilty.  Finding:  Not guilty of willful dereliction but guilty of negligent dereliction.

	Charge II: Article 92, Specification 4:  On or about 1 January 2005 to on or about 31 December 2010 he was derelict in the performance of his duties in that he willfully failed to direct the contractor to ship refurbished AGE back to the Air Force as it was his duty to do so.  Plea:  Not Guilty.  Finding:  Guilty.

	Charge III: Article 107, Specification 1:  On or about 31 July 2006 and on or about 31 October 2009 with intent to deceive, sign official records, to wit:  QAE Reports, which records were false in that the evaluations were not conducted and were then known by the applicant to be false.  Plea:  Not Guilty.  Finding:  Guilty.

	Charge III, Article 107, Specification 2:  On or about 26 September 2005 and on or about 20 January 2010 with intent to deceive make an official statement, to wit: “Contractor has completed the refurbishment that was invoiced” or words to that effect which statement was totally false and was then known to be false.  Plea: Not Guilty.  Finding: Guilty.

	Charge III, Article 107, Specification 3:  On or about 26 September 2005 and on or about 20 January 2010 with intent to deceive make again an official statement to wit:  “Contractor has completed the refurbishment that was invoiced” or words to that effect which statement was totally false and was then known to be false.  Plea: Not Guilty.  Finding:  Guilty.

	Charge IV: Article 108, Specification 1:  On or about 9 November 2005 and on or about 15 June 2010 without proper authority willfully suffer two AMA32A-95 gas turbine compressor sets of a value of about $484,000 military property of the United States to be sold to a contractor.  Plea: Not Guilty.  Finding: Not guilty of willful suffering of military property to be sold but guilty of suffering through neglect military property to be sold.

	Charge IV.  Article 108, Specification 2:  On or about 1 August 2004 and on or about 30 September 2004 without proper authority dispose of by shipping to the contractor AGE of a value of more than $500, military property of the United States.  Plea: Not Guilty.  Finding: Guilty.

	The sentence adjudged by officer members on 5 April 2013 was reduction to the grade of SSgt.  The sentence was approved and executed.  The record of trial was forwarded to the Judge Advocate General for examination under Article 69(a), UCMJ, unless appellate review to be waived or withdrawn.

On 31 October 2013, the applicant retired in the grade of SSgt with a narrative reason for separation of “Voluntary Retirement Maximum Service or Time in Grade.”  He served 27 years, 2 months and 6 days of active duty service.  

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C and D.    

AIR FORCE EVALUATION:

AFPC/DPSOR-RET recommends denial.  Per 10 U.S.C. § 8964, proper steps were taken by the Air Force to determine if the applicant should have been advanced to the grade of MSgt.  To grant relief would be contrary to the criteria established by law and DOD guidance.

On 11 May 2010, the applicant applied for voluntary retirement with an effective date of 1 April 2011.  His request was approved on 24 June 2010; however, on 31 January 2011, DPSOR-RET was requested to place the applicant on administrative hold pending an investigation.  Effective 19 June 2013, he was released from administrative hold and shortly thereafter requested retirement effective 31 October 2013.

The applicant received a general court-martial with reduction to the grade of SSgt, adjudged on 5 April 2013.  A satisfactory service determination was accomplished considering he held a higher grade.  Upon receipt of the general court-martial documents, a request to the Secretary of the Air Force Personnel Council (SAFPC) was submitted to determine whether the applicant would be advanced to the higher grade on the retired list when his time on active duty and time on the retired list totals 30 years per 10 U.S.C. § 8964 which states that regular enlisted members may, when their active service plus service on the retired list total 30 years be advanced and receive retired pay in the highest grade held on active duty satisfactorily as determined by the Secretary of the Air Force or designee.  On 10 October 2013, SAFPC determined the applicant did not serve satisfactorily in the higher grade of MSgt within the meaning of 10 U.S.C. § 8964.  However, SAFPC did find the applicant served satisfactorily in the grade of Technical Sergeant (TSgt, E-6) and directed the applicant be advanced to that grade on the retired list effective the date of completion of all required service, 26 August 2016.  On 16 October 2013, amendments were generated with a special order number AC-00527 with the SAFPC decision.  

A complete copy of the AFPC/DPSOR-RET evaluation is at Exhibit C.

AFPC/JA concurs with the recommendation of AFPC/DPSOR-RET that the applicant’s request be denied.  The applicant has not alleged any procedural error that occurred in the processing of his case.  Having reviewed the materials submitted by the applicant and the record of trial, AFPC/JA’s conclusion is that the judicial process worked as it should with the appropriate checks and balances.  The IO recommended a disposition of the charges other than a court-martial; however, the IO only makes a recommendation to the convening authority who acts independently.  In this case, the charges were referred to trial and the applicant was ultimately convicted and sentenced by officer members.  The sentence was approved by the convening authority.

The applicant’s appeal for relief is primarily based on the argument that he is not guilty of the crimes for which he was convicted.  The court-martial appellate process, not the AFBCMR, exists for the purpose of reviewing the findings of courts-martial.  In this case, the applicant is effectively requesting the Board to perform the appellate functions or simply disregard the findings of guilty.  Such an evaluation would be contrary to the intent of 10 U.S.C. § 1552(f) which effectively limits the Board to reducing the severity of a sentence on clemency grounds.  Despite the fact the applicant believes he is not guilty of the crimes he was accused of, the Board should treat the conviction as final and not entertain the arguments of counsel as to insufficiency of the evidence.  Under 10 U.S.C. § 1552(f), the Board’s ability to correct records related to courts-martial is limited.  Specifically, the Board may correct a record to reflect actions taken by reviewing authorities under the UCMJ and actions relating to the sentence of courts-martial for clemency.  Apart from these two limited exceptions, the effect of 10 U.S.C. § 1552(f) is that the Board is without authority to reverse, set aside or otherwise expunge a court-martial conviction.

The applicant states the adjudged reduction in grade imposed at the court-martial constitutes an injustice based on the facts of the case.  He has also provided some evidence of his moral character since he has gotten out of the Air Force.  However, the applicant has not carried his burden of showing an injustice in his record.  There is no evidence which indicates the applicant’s two-grade reduction which had its basis in his conviction by general court-martial and was part of the sentence of the military court was improper or that it exceeded the limitations set forth in the UCMJ.  It is quite clear that the officer members carefully considered the sentencing instruction of the military judge as to the principles of sentence and all matters in aggravation as well as mitigation and extenuation admitted during the trial on the merits and pre-sentencing hearing given the maximum punishment authorized for the multiple offenses of which he was found guilty.  The applicant also does not mention the satisfactory service determination process.  His case appears to have been processed in accordance with statute and regulations and SAFPC determined he will attain the grade of TSgt upon his 30-year mark.  The applicant has already received the benefit of this process.  What is left is an issue of sentence appropriateness and whether clemency is warranted here.  The maximum imposable sentence for the offenses for which he was convicted was a dishonorable discharge, 27 years and 9 months confinement, forfeiture of all pay and allowances and reduction to the grade of Airman Basic (AB, E-1)_.  Of these permissible elements of punishment, he was solely reduced to the grade of SSgt.  The very principles of sentencing his counsel urges the Board to consider are the ones his court-martial would have considered in crafting an appropriate sentence.  The reduction in grade to SSgt was appropriate and the sentence was not inappropriately severe.  Finally, to grant the requested relief would effectively transform the adjudged and approved sentence to one of no punishment.  Subsequent good deeds do not rewrite one’s personal history.  There remains a need for at least a scintilla of enduring accountability for the offenses he was convicted of beyond the mere fact of the conviction itself.

A complete copy of the AFPC/JA evaluation is at Exhibit D. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Counsel, on behalf of the applicant, states that the AFPC/DPSOR-RET advisory states the applicant is seeking review of his guilty verdict of his court-martial on the basis of an injustice but makes no comment as to the validity of the allegations and the verdict.  Although they recommend denial of the application, it is the Board’s discretion to advance the applicant for perceived injustices and errors related to his original prosecution as well as his contribution to society after being discharged in 2013.  Counsel hopes the Board determines that it was inappropriate for the applicant to be held exclusively responsible for all participants that had a hand in the errors which led to the charges.

AFPC/JA argues relief should be denied and that granting relief would effectively transform the adjudged and approved sentence to one of no punishment.  The Board routinely evaluates and transforms prior decisions when the Board determines an error or injustice has occurred based on the record as a whole.  The Board has an obligation to act when justified and warranted, such as in this matter.  The application highlights numerous errors and injustices that occurred during the court-martial and discharge process.

A complete copy of the applicant’s submission, with attachments, 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 an error or injustice.   As pointed out by AFPC/JA, this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with 10 U.S.C § 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.  Counsel argues the applicant’s grade of MSgt should be reinstated as he is not guilty of the charges for which he was convicted by general court-martial and that there were numerous errors and injustices that occurred during the court-martial and discharge process.  However, no evidence has been presented to indicate the applicant’s reduction to the grade of SSgt, 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 UCMJ.  Counsel also urges the Board to consider clemency based on the applicant’s post-service activities.  While the Board is pleased to see the applicant’s positive contributions to his community, we find the information presented insufficient to grant relief on this basis.  In this respect, we are mindful the adjudged sentence of the court-martial could have been much more severe, to include a sentence of more than 27 years confinement and reduction to the grade of AB, but note the applicant’s punishment was solely a two-grade reduction to the grade of SSgt which also permitted him to retire rather than be discharged.  Furthermore, SAFPC determined the applicant served satisfactorily in the grade of TSgt per 10 U.S.C. § 8964 and directed he be advanced to the grade of TSgt on the retired list on 26 August 2016 (active duty time and time on the retired list totals 30 years).   In view of the above and given the severity of the crimes the applicant was found guilty of, it is our opinion the applicant has already benefitted from the process and received clemency.  Accordingly, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the basis for our conclusion the applicant has not sustained his burden of proof that he has been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

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-2015-03795 in Executive Session on 8 September 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 18 August 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOR-RET, dated 10 February 
			  2016.
	Exhibit D.  Memorandum, AFPC/JA, dated 16 March 2016.
	Exhibit E.  Letter, AFBCMR, dated 12 April 2016.
	Exhibit F.  Letter, Counsel, dated 11 May 2016, w/atchs.
	Exhibit G.  Letter, Counsel, dated 25 July 2016, w/atchs.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.