ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2016-04514-2

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request for the following:

1. Set aside his Special Court-Martial conviction sentencing based on clemency, specifically the demotion, forfeiture of pay and reprimand. (Amended request)

2. Authorize the final rank of staff sergeant (E-5), effective 24 Jul 95, along with all associated pay and allowances.

3. Credit for the remaining 5 years of active duty service based on his original second enlistment. (New request)

4. Change his reason for separation and reentry code to “4A” (Hardship or dependency discharge). (Amended request)

RESUME OF THE CASE

The applicant is an honorably discharged Air Force airman first class (E-3) who initially received an Under Honorable Conditions (General) discharge on 24 Jul 95 and then upgraded to an Honorable discharge by the AFBCMR on 3 Mar 98 based on clemency. On 12 May 20, the Board considered and denied his multiple requests finding that a preponderance of the evidence did not substantiate the applicant’s contentions.  The Board noted, “We find, by previous recommendation of this Board, the applicant’s records were corrected to reflect he was honorably discharged by Secretarial Authority, which were believe to be full and fitting clemency relief.” The Board also noted, “Other than the rating assigned by the DVA, the applicant’s case file was absent any medical condition that interfered with the performance of his military duties, particularly that which would support a medical retirement or granting liberal consideration.”

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit N.

On 8 Jul 20, the applicant requested reconsideration of his request. The applicant contends the punishment has served its purpose and his post service accomplishments are significant over the past two decades and warrant full clemency relief. Also, he again contends the Hagel and Kurta memorandums support his reasoning for relief and should extend to warrant his request to change the reentry code. Furthermore, he was not involuntarily separated and statements provided from his Superintendent and supervisor contradict his reentry code and clearly notes his hardship condition attributed to his mental health conditions. Additionally, an injustice existed based on the totality of his service and the 2019 General Accountability Office (GAO) investigation that determined that “black, Hispanic and male troops were more likely than white or female service members to be investigated for criminal activity and to be tried in courts-martial.” 

In support of his request the applicant provided copies of various education, community service and employment documents, character statement letters, and an article titled, Federal Lawsuit Reveals Air Force Cover Up.

The applicant’s complete submission is at Exhibit O.

APPLICABLE AUTHORITY

Under 10 U.S.C. § 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts-martial is limited.  Specifically, § 1552(f) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ.  Additionally, § 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of § 1552(f) is that the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ).  

FINDINGS AND CONCLUSION

After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  The Board again finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2016-04514-2 in Executive Session on 3 Feb 21:

Panel Chair
Panel Member
Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit N:	Record of Proceedings, w/ Exhibits A-M, dated 12 May 20.
Exhibit O:	Application, DD Form 149, w/atchs, dated 24 May 20, 8 Jul 20 and 13 Jan 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.