RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01661 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. The reprimand he received from his general court-martial (GCM) sentence be removed from his records. 2. The referral Officer Performance Report (OPR) rendered on him with a close out date of 28 April 2007 be removed from his records. ________________________________________________________________ APPLICANT CONTENDS THAT: His 3-month-old son was admitted to the hospital and later removed from his home after doctors discovered hairline fractures on his ribs. His son was later diagnosed with a rare bone connective tissue disease called Bruck’s Syndrome. Out of fear of their son being removed from their home by Child Welfare Services (CWS), he and his wife decided to separate. He and his wife requested the unit issue a no-contact order to convince CWS they had distanced themselves from each other. His wife also filed for legal separation. When he received the separation papers, he became concerned. The papers mistakenly noted that his wife intended to take her maiden name. After seeing this, he panicked and assumed something changed and that his wife intended to divorce him. He contacted her by telephone and text message to get reassurance from her that they would remain together. His wife notified his unit of the contact and he was placed into pre-trial confinement for 38 days. He was released from pre- trial confinement upon the recommendation of the Article 32 Investigation Officer. The Investigating Officer also recommended the charges be dismissed. An injustice has been committed against him. The prosecution violated the law and withheld critical evidence in order to secure a conviction. He has actively pursued restitution of these errors only to be ignored. He respectfully requests the Board conduct a full review of his case. In support of his appeal, the applicant provides a 19-page statement, a copy of the contested OPR, a copy of the court- martial order and other supporting documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant is currently on active duty serving in the grade of captain (O-3). On 11 April 2007, pursuant to a general court-marital, he pled guilty to and was convicted of failing to obey a lawful order, in violation of Article 92, of the Uniform Code of Military Justice (UCMJ). He pled not guilty to and was found not guilty of unlawfully squeezing a child under the age of 16 with his hands, a violation of Article 128, UCMJ. He was sentenced to 30 days confinement and a reprimand. On 19 July 2007, the applicant was notified he would receive a referral OPR as a result of his court-martial conviction. The applicant submitted a statement on his behalf; which was considered by the additional rater. The referral OPR was filed in his master personnel record. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Title 10 U.S.C 1552(f) limits the Boards ability to correct court-martial records. Specifically, it permits the correction of a record to reflect actions taken by a reviewing authority and the correction of records related to action on the sentence of courts-martial for the purpose of clemency. 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 applicant was placed under investigation in March 2006 because of medical and testimonial evidence that he may have assaulted his son. In April 2006, after admitting to a social worker that he squeezed, dropped, pinched and flicked his son, he was given an order by his commander not to have any contact with his children. Later, he was also given an order to have no contact with his wife. The applicant and his counsel had full opportunity to explore the issues raised both at trial and in clemency. While the applicant may consider the conviction de minimis, confinement for 30 days and a reprimand is well within the legal limits and appropriate for the offense committed. There being no evidence of clear error or injustice, the Board should deny the applicant’s request as it relates to his court- martial sentence. The complete AFLOA/JAJM evaluation is at Exhibit C. AFPC/DPSID recommends denial. The applicant has not filed an appeal through the Evaluation Reports Appeals Board (ERAB); however, the ERAB was not convinced the report was unjust or inaccurate and denied the applicant’s request. DPSID further states in accordance with AFI 36-2406, Officer and Enlisted Evaluation Reports, if a member is convicted by a court-martial, comment on that fact is mandatory in the next OPR, and the report becomes a referral. The court-martial conviction has not been dismissed; therefore, the mention of it in the applicant’s contested report is mandatory and appropriate. The complete DPSID evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 28 October 2011 for review and comment within 30 days (Exhibit E). As of this date, this office has received no response. ________________________________________________________________ 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 error or injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has not 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 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 that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; 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 this application in Executive Session on 12 January 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Feb 11, w/atchs. Exhibit B. Letter, Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 29 Jul 11. Exhibit D. Letter, AFPC/DPSID, dated 6 Oct 11. Exhibit E. Letter, SAF/MRBR, dated 28 Oct 11.