RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03514 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His dishonorable discharge (DD) be upgraded to a honorable discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: He has paid for his mistakes with prison time and a DD. He needs recognition of his good service prior to his court- martial. He was acquitted of having sex with a female under the age of 16. He accepted responsibility for his mistakes by pleading guilty to the other charges. In support of his request, the applicant provides copies of excerpts from his military personnel records. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: According to the applicant’s military personnel records, he was furnished a DD on 19 Nov 86. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report which is attached at Exhibit C. A copy of the FBI Investigative Report and a request for post- service information was forwarded to the applicant on 23 May 12 (Exhibit F). As of this date, no response has been received by this office. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. On 15 Nov 85, the applicant was tried at a general court-martial at Charleston Air Force Base for having sexual intercourse, committing sodomy, and raping a female under the age of 16 between 8 Mar 85 and 14 Apr 85. The applicant pled guilty to all of the charges and specifications. He was found guilty for the charges and specifications of having sexual intercourse and committing sodomy, the charge of rape was dismissed due to a pretrial agreement. He was sentenced to a DD, confinement for five years, forfeiture of all pay and allowances, and a reduction in rank to airman basic. On 8 Apr 86, the Air Force Court of Military Review approved and affirmed the findings and sentence. On 18 Jul 86, the United States Court of Military Appeals denied the applicant’s petition for a review of his court-martial conviction; therefore, making the findings and sentence final and conclusive under the Uniform Code of Military Justice (UMCJ). His DD was executed on 13 Aug 86. Prior to accepting the applicant’s guilty plea, the judge ensured he understood the meaning and effect of his plea and, the maximum punishment he could have received if his guilty plea was accepted by the court. In addition, the judge explained the elements and definitions of the offense and the applicant expressed why he believed he was guilty. After accepting the applicant’s guilty plea, the court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. While clemency in this case can be granted, it is not warranted as it would be unfair to those who honorably served their country while in uniform. A complete copy of the AFLOA/JAJM evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 22 Dec 11 for review and comment within 30 days (Exhibit E). 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 not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 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 court- martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). In addition, the applicant has not provided information on his post-service activities and accomplishments after being provided an opportunity to present such information to the Board. Therefore, based on the evidence of record, we cannot conclude that clemency is warranted. Therefore, we find no basis upon which to favorably consider this application. ________________________________________________________________ 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-2011-03514 in Executive Session on 28 Jun 12, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-03514 was considered: Exhibit A. DD Form 149, dated 29 Aug 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFLOA/JAJM, dated 16 Dec 11. Exhibit E. Letter, SAF/MRBR, dated 22 Dec 11. Exhibit F. Letter, AFBCMR, dated 23 May 12, w/atch.