RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2000-02514

xxxxxxxxxxx	COUNSEL: XXXXXXXXX

		HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board provide relief from his court-martial sentence and grant him a military retirement; or, in the alternative, grant him a discharge upgrade.

APPLICANT’S CONTENTIONS

He wants the Board to overturn his court-martial conviction which will allow him to retire with over 24 years of faithful service.  His dismissal was extremely harsh.  He was sentenced to one year of confinement but was released after nine months as a trustee with no felony convictions.  He was neglected by a multitude of military defense counselors who were reluctant to argue his case.  Nearly $1 million dollars was spent on the investigation to find him guilty to avert potentially damaging relations between the United States Air Force and the Philippine Air Force.  He was a security liaison and intelligence officer and his job accomplishments often overshadowed the Air Force Office of Special Investigation (AFOSI) efforts and discredited their intelligence inputs derived from paid informants.  Speaking the language fluently, he was effective in communicating with the host country at all levels.  He was considered a U.S. military/political threat when his reports indirectly tarnished the credibility of the AFOSI.  A majority of illegal activities on base were perpetrated by corrupt high ranking Philippine officials.  He refused to overlook these activities and exposed them, becoming the likely scapegoat to create a smokescreen to preserve U.S./Philippine relations.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force captain (O-3). 

On 24 Jun 94, the convening authority published General Court-Martial Order No. X.  The Order stated the applicant pled not guilty to all charges.  One charge, one specification of attempting to steal military property (Article 80), found guilty; one charge, six specifications of violating a lawful general regulation by willfully failing to respond to reports of theft in progress, using his official position to induce monetary payments and gifts, and by wrongfully carrying weapons (Article 92), found guilty of two specifications of willfully failing to respond to reports of theft in progress and wrongfully carrying weapons;  one charge, three specifications of willfully allowing the removal of government property (Article 108), found guilty; one charge, one specification of stealing military property (Article 121), found not guilty; and one charge, two specifications of threats to injure (Article 134), found not guilty.  The applicant was sentenced to dismissal and confinement for one year.

On 7 Jul 94, the convening authority published General Court-Martial Order No. XX.  The Order stated the applicant’s dismissal and confinement had been affirmed and the applicant’s application for retirement was disapproved by the Secretary of the Air Force ordering the applicant’s dismissal be executed.

On 9 Sep 97, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was dismissed from the Air Force after serving 17 years and 6 months of active duty.  He was discharged, with a narrative reason for separation “Court-Martial (Other).”

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit C.

POST-SERVICE INFORMATION

On 10 Nov 22, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI); however, he has not replied.

APPLICABLE AUTHORITY

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 reflecting actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 10 Nov 22, the Board staff provided the applicant a copy of the clemency guidance (Exhibit G).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

AFLSA/JAJM recommends denying the application finding no clear error or injustice occurred in the applicant’s case.  The applicant's crimes were repeated and flagrant violations of the standards expected of any Air Force member and he has provided no evidence that exonerates him or mitigates his criminal conduct.  His conviction and sentence were affirmed on appeal and were found to be neither improper nor excessive.  Furthermore, the Board does not have authority to overturn the applicant's conviction. The Board does have the discretion to upgrade the applicant's dismissal to a more favorable discharge characterization or to mitigate part of the applicant's court-martial sentence.  After a litigated trial, the applicant was found guilty of some of the charges against him while acquitted of several others.  On appeal, the Air Force Court of Criminal Appeal upheld the applicant's conviction, specifically finding that they were “convinced of the appellant's guilt beyond a reasonable doubt ...”   It should be noted that one of the issues on appeal was related to applicant's allegations of ineffective assistance of counsel.  The court held that the applicant's complaints about ineffective assistance of counsel do not arise to an accusation of ineffective assistance of counsel but rather “grousing over administrative inconvenience.”  The court also addressed the allegations concerning his counsel's preparation at the Article 32 hearing and found no error or prejudice.  The applicant's overall military record was taken into account when deciding on an appropriate sentence.  The maximum punishment authorized for the offenses for which the applicant was convicted was dismissal, confinement for 27 years, total forfeitures and a fine.  Based upon the overwhelming evidence in support of the applicant's conviction, the sentence was appropriate.  The applicant provides no evidence in support of his allegation that the AFOSI was out to destroy him or how much money was spent in investigating this matter.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 26 Jan 01 for comment (Exhibit D), and the applicant replied on 23 Feb 01 requesting his case be temporarily withdrawn to allow more time to respond to the advisory.  On 26 Feb 01, the applicant’s case was closed (Exhibit E). On 15 Jan 20, the applicant sent in a new application requesting a 20-year military retirement; or in the alternative, a discharge upgrade.  In his response, the applicant’s counsel agrees that the previous submission asking the Board to overturn the court-martial conviction is not in the prevue of the Board and asks the Board to apply clemency guidance to grant the applicant’s request based on the non-violent offense and the passage of time.  The applicant accepts responsibility for his actions and shows remorse.  The applicant’s charge of larceny shows he did not personally benefit from any of the charged larceny or wrongful disposition of property.  The trial records show his intent; the items were to be donated to the community as compensation for the Negritos’ assistance in helping to load and haul away the items.  This was common practice to provide aid to unfortunate individuals in their impoverished communities.  It makes no difference that the practice of scrap compensation was improperly extended to remove serviceable property by the Negritos, as the intent or honest motive is still the same, lack of personal benefit and no dishonest motive.

The applicant’s complete response is at Exhibit F.

FINDINGS AND CONCLUSION

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations period established by 10 U.S.C. § 1552(b).

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an injustice.  The Board finds no evidence that the sentence of the military court was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice.  Nor did the Board find the preponderance of evidence supports the applicant’s contention of counsel neglect.

In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the lack of evidence presented, the Board finds no basis to do so.  Even though the applicant’s counsel contends he accepts responsibility for his actions and shows remorse and that the charge of larceny shows a lack of personal benefit and no dishonest motive, without post-service evidence showing the applicant’s activities after his time in the service, these statements do not overcome the misconduct for which he was discharged.  The Board contemplated the many principles included in the Wilke Memo to determine whether to grant relief based on an injustice or fundamental fairness.  This Board very carefully weighs requests to upgrade the character of a discharge and in doing so, considers whether the impact of an applicant's contributions to his or her community since leaving the service are substantial enough for the Board to conclude they overcame the misconduct that precipitated the discharge and whether an upgrade of the discharge would create a larger injustice to those who served honorably and earned the characterization of service the applicant seeks.  However, given the evidence presented, the Board determined relief is not warranted. 

The applicant retains the right to request reconsideration of this decision, which could be in the form of a personal statement, character statements, occupational and social advances, or testimonials from community leaders/members specifically describing how his efforts in the community have impacted others.  Furthermore, to be considered under clemency, the Board requires an FBI Identity History Summary Check or, in the alternative, proof of employment in which background checks are part of the hiring process.  Should the applicant provide documentation pertaining to his post-service accomplishments and activities, this Board would be willing to review the materials for possible reconsideration of his request based on clemency.  

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-2000-02514 in Executive Session on 15 Dec 22:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 8 Sep 00.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLSA/JAJM, dated 26 Jan 01.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 26 Jan 01.
Exhibit E:	Applicant’s response (Case Closed), dated 23 Feb 01.
Exhibit F:	Applicant’s response (Case Reopened), atchs, dated 15 Jan 20.
Exhibit G:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency  
                  Guidance), dated 10 Nov 22.

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.