ADDENDUM TO RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2005-02137 XXXXXXX COUNSEL: XXXXXXXXXXX HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to Honorable and his previous rank of staff sergeant (E-5) be restored. ________________________________________________________________ RESUME OF CASE: On 3 Apr 08, the Board considered and denied applicant’s request for an upgrade of his BCD and restoration of his previous grade of staff sergeant (E-5). In the initial case, the applicant cited ineffective counsel as the basis for his request. For an accounting of the facts and circumstances surrounding the applicant’s discharge, and the rationale of the earlier decision by the Board, see the Record of Proceedings at Exhibit G. In a new DD Form 149, dated 24 Nov 08, the applicant requests reconsideration based upon newly-discovered evidence not reasonably available at the time of his initial application. The newly-discovered evidence includes documentation related to a negative urinalysis test result allegedly not provided by the prosecution at the time of trial, and alleged irregularities regarding the removal of the applicant’s assigned defense counsel. Applicant contends the failure of the prosecution to provide the negative urinalysis test and the command’s inappropriate action to sever the attorney-client relationship materially affected the outcome of his post-conviction clemency proceedings. The applicant’s complete submission, with attachments, is at Exhibit H. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit I. ________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: The AFBCMR Legal Advisor notes the applicant’s prior claims of ineffective counsel have been addressed in the appellate courts and in his first AFBCMR application. Here, he contends the failure of the prosecution to provide the negative urinalysis test result and his counsel’s inappropriate removal materially affected the outcome of his post-sentence clemency proceedings. While the AFBCMR is free to use any basis to support clemency, doing so based on a legal error analysis for a UCMJ action would appear to be inconsistent with, if not subversive of, its statutory limitation to clemency on such matters. Nevertheless, it is a fine line between these factors being considered an error and having them constitute a mitigating circumstance that could support clemency. As for the applicant’s negative urinalysis test result, the affidavit from the base defense paralegal indicates she was aware of it in 1983, so the failure of the prosecution to provide it could have been raised in appellate review or in supplemental clemency requests. As for termination of the attorney-client relationship, it is clear another attorney took up the applicant’s case. The presumption of regularity would establish that he or she would have become familiar enough with the case to determine the importance of the applicant’s contentions on the appeal. However, his assertion the best window to have the convening authority grant clemency was at least compromised by the timing of counsel replacement does have some validity, although this can occur even with routine counsel separation or rotation. The applicant has made some worthwhile, if belated points, and provided some factual support for them. Whether the Board concludes they are adequately substantiated, and whether they are sufficiently linked to the sentence to support clemency on the sentence is solely within its prerogative. Although the Board cannot change the verdict, it has the authority to substitute an administrative separation with either an Honorable, General, or Under Other Than Honorable Conditions (UOTHC) characterization of service and/or remit the reduction in rank. A complete copy of the AFBCMR Legal Advisor’s evaluation is at Exhibit J. ________________________________________________________________ APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the FBI Report of Investigation, a request for post- service information, and the AFBCMR Legal Advisor opinion was forwarded to the applicant on 21 Jan 10 (Exhibit K). In response, Counsel provides a memorandum addressing the contents of the FBI Investigative Report (Exhibit L), as well as a statement from the applicant, character references addressing his post-service activities, and a short brief addressing the AFBCMR Legal Advisor Opinion (Exhibit M). Counsel indicates the Board has the opportunity to correct a substantial injustice done to a career NCO. Notwithstanding the AFBCMR Legal Advisor opinion, clemency based on legal error is appropriate in this case as it involves a Fifth Amendment due process violation; specifically, the withholding of the clean drug report creating a reasonable doubt the applicant committed either specification of the charges, and the loss of his defense counsel at a critical moment in the proceedings due to command interference. As for the applicant’s case for post-conviction clemency, he has been a reliable, productive citizen who has overcome substantial hardship as evidenced by his professional, community, and educational achievements in the face of his unlawfully imposed punitive discharge. He is a licensed insurance agent whom the XXXXXXXXXX Insurance Commission cleared for certification despite his punitive discharge and the incident involving his van which was not a criminal matter. Therefore, the Board should grant his request and change his discharge from BCD and restore his rank. A complete copy of Counsel’s responses are at Exhibits L and M. ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. After again reviewing this application and the evidence provided in support of his appeal, we remain unconvinced the applicant has been a victim of an error or injustice. We have previously determined that the applicant’s BCD and reduction in grade to airman basic (E-1), which was the sentence he received following conviction by special court-martial for soliciting a junior member to obtain marijuana and transfer it to him, was neither improper nor excessive. While the applicant’s contentions are duly noted, his latest submission has not persuaded us otherwise. Further, we remain unconvinced the seriousness of his misconduct has been overcome by his post- service activities. While we acknowledge his accomplishments since his discharge, we are not compelled at this time to upgrade his BCD to honorable or restore his previous rank on the basis of clemency. 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 applicant be notified that the evidence presented did not demonstrate the existence of probable material error or injustice; and that 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-2005-02137 in Executive Session on 15 Apr 10, under the provisions of AFI 36-2603: XXXXXXXXXX, Panel Chair XXXXXXXXXX, Member XXXXXXXXXX, Member The following documentary evidence was considered: Exhibit G. Record of Proceedings, dated 3 Apr 08, w/atchs. Exhibit H. DD Form 149, dated 24 Nov 08, w/atchs. Exhibit I. FBI Report. Exhibit J. Letter, SAF/MRB Legal Advisor, dated 13 Jan 10. Exhibit K. Letter, AFBCMR, dated 21 Jan 10, w/atch. Exhibit L. Letter, Counsel, dated 3 Feb 10, w/atch. Exhibit M. Letter, Counsel, dated 21 Feb 10, w/atchs. XXXXXXXXXX Panel Chair