RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-02391 COUNSEL:
HEARING DESIRED:	YES

APPLICANT REQUESTS THAT:
His type of separation be changed from a “Dismissal” to an “Honorable” discharge. Or in the alternative be changed to a general (under honorable conditions) discharge.

His narrative reason for separation of “Trial by Court-martial” be changed to “Secretarial Authority,” with the corresponding separation code.

APPLICANT CONTENDS THAT:
In a nine-page legal brief, through counsel, the applicant contends the following:

He was inequitably punished for his offense. He should have been allowed to resign his commission in lieu of a court-martial or face a Board of Inquiry (BOI). His punishment was disproportionately severe. His post-service conduct has been remarkable. It demonstrates that the misconduct for which he was separated was not representative of his character as a person. He respectfully requests relief.

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

STATEMENT OF FACTS:
The applicant was appointed a second lieutenant in the Air Force Reserve on 13 May 94. On 1 Sep 94, he was ordered to Extended Active Duty (EAD).

In 2001, the applicant pled guilty at a general court-martial to one charge and two specifications of conduct unbecoming an officer and a gentleman in violation of Article 133, UCMJ; one charge and one specification of fraternization in violation of Article 134, UCMJ; and one charge and one specification of making a false official statement in violation of Article 134, UCMJ.

FOR OFFICIAL USE ONLY – PRIVACY ACT OF 1974

On 12 Jul 01, the applicant was sentenced to a dismissal and confinement for 10 months. On this same date, the convening authority reduced his confinement to six months but otherwise approved the findings and sentence.

On 30 Jun 04, the Air Force Court of Criminal Appeals (AFCAA) approved the findings and sentence as correct in law and fact, and found no error prejudicial to the applicant’s substantial rights.

On 17 Sep 04, the Secretary of the Air Force (SECAF) approved the dismissal and the Air Force Chief of Staff (CSAF) ordered the dismissal executed.  On 18 Sep 04, the applicant was dismissed.

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:
AFLOA/JAJM recommends denial of the applicant’s request indicating there is no evidence or allegation of an error or injustice that tends to undermine the sentence adjudged at court-martial.

The applicant requests that the BCMR consider clemency in his case. In support of his application, he submits a list of achievements from his time in the service as well as post-service letters attesting to his good character. As to the achievements he had while in the military, the applicant states his sentence was inequitable as it did not sufficiently weigh his positive contributions to the Air Force. During the sentencing phase of trial, an accused is permitted to introduce matters in mitigation of their offense, and it is common for an accused to submit to the fact-finder evidence which they believe was neglected in their case. It is likely that in crafting the sentence the applicant received, the trier was aware, or should have been aware through applicant’s counsel, of the information applicant raises in this petition. The applicant has not produced sufficient evidence to show any legal or procedural error in his court-martial with respect to this matter to warrant relief.

In addition, the applicant asserts he should have been discharged in lieu of court-martial. Specifically, the applicant states he should have been allowed to Resign in Lieu of (RILO) Court-martial. However, the records reveal that a discharge request was filed and disapproved. It is within the SECAF’s discretion whether to approve or disapprove a RILO request, and the applicant has not submitted any evidence that his disapproval was a legal error warranting correction. Disagreement with the SECAF’s action is an insufficient basis to warrant relief.

In accordance with 10 USC §1552(f), the BCMR has no authority to overturn the court-martial conviction, but may, on the basis of clemency, adjust the sentence. Therefore, the BCMR should consider whether the matters submitted by the applicant warrant clemency.

JAJM opines the applicant has not provided any evidence to suggest his conviction and sentence were unsupported in law or fact, nor does he make any such allegation. The applicant, through his guilty plea, admitted to his misconduct and took responsibility for it. The punishment approved by the convening authority was within the range of permissible punishments, and the appellate court reviewed his case and affirmed the findings and sentence.

The applicant has not submitted any new evidence or information which tends to cast doubt on the outcome of his trial. Instead, the applicant states his admirable conduct since his discharge should warrant relief from his dismissal that was adjudged by the military judge and approved by the convening authority, AFCCA, and the SECAF.

JAJM opines there is no basis in law or in the materials submitted by the applicant to suggest his court-martial sentence is an injustice warranting correction by the Board.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant, through counsel, on 31 Jan 17, for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.

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. 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 which indicates the applicant’s service characterization, which had its basis in his conviction by court-martial and was part of
1.	

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 court-martial conviction which precipitated the discharge, and the seriousness of the offense to which convicted. However, we found no error or injustice with regard to the actions taken against the applicant and find no basis exits to grant favorable action on his requests. In addition, based on the limited evidence pertaining to his post service activities, we are not persuaded the characterization of the applicant’s discharge warrants an upgrade to honorable or general (under honorable conditions) on the basis of clemency. Therefore, we agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale expressed as the basis for our conclusion the applicant has not been the victim of 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.

4.	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 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-2016-02391 in Executive Session on 10 Aug 17, under the provisions of AFI 36-2603:

Panel Chair Member
Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2016-02391 was considered:

Exhibit A.	DD Form 149, dated 7 Apr 16, w/atchs. Exhibit B.	Pertinent Excerpts from Master Personnel
Records.
Exhibit C.	Memorandum, AFLOA/JAJM, dated 7 Nov 16 Exhibit D.	Letter, SAF/MRBR, dated 26 Jan 17.
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.