RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04278 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: a. His court-martial conviction and sentence be set aside. b. His promotion to the grade of staff sergeant be reinstated with two years time in grade (TIG). c. He be given a line number to the grade of technical sergeant (TSgt) due to his inability to test. d. He be allowed to reenlist. e. He be considered for a Permanent Change of Station (PCS) assignment. __________________________________________________________________ APPLICANT CONTENDS THAT: His conviction was improper because the evidence used against him shows the incident occurred at least 20 minutes prior to the truck passing the guard shack. This is evident when comparing the times in the blotter report, incident report and the time stamp of the photo. In support of his request, the applicant provides copies of a photo, blotter report, AF IMT 1168, Statement of Suspect/Witness/Complainant; AF Forms 910, Enlisted Performance Report (AB thru TSgt); letters of recommendation, and other documents associated with his request. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is currently serving in the Air Force in the grade of senior airman. On 3 Apr 05, the applicant did, at or near Shreveport, Louisiana, physically control a vehicle, to wit: a passenger car, while the alcohol concentration in his breath was .08 grams of alcohol per 210 liters of breath or greater as shown by a chemical analysis. For this misconduct the applicant was reduced to the grade of senior airman, with a new date of rank of 25 Apr 05 and forfeiture of $938 pay per month for two months. On 23 Oct 10, an unidentified individual drove out the Goodfellow AFB (GAFB), Texas gate at a high rate of speed, even after being directed to slow down, and almost struck the 17th Security Forces Squadron commander with his vehicle. On 24 Oct 10, the applicant, then a staff sergeant (SSgt), attempted to reenter the installation. The vehicle he was driving matched the description of the vehicle involved in the incident the previous day. Subsequently, the 17th Security Forces Squadron commander identified the applicant as the individual who was driving the vehicle on 23 Oct 10. The applicant was eventually charged with willfully disobeying a lawful order from a superior commissioned officer to stop his vehicle, in violation of Article 90, Uniform Code of Military Justice (UCMJ); reckless operation of a vehicle for driving at an excessive rate of speed through the gate at GAFB in violation of Article 111, UCMJ; and wrongfully and recklessly engaging in conduct, by driving at an excessive rate of speed through the gate, conduct which was likely to cause death or grievous bodily harm, in violation of Article 134, UCMJ. On 20 Jan 11, the applicant’s Special Court-Martial convened. He elected to be tried by military judge alone. At trial, the applicant pled not guilty to all charges and specifications. He was represented by counsel and had the opportunity to cross- examine the witness against him and present evidence in his own behalf. The military judge found the applicant guilty of negligent dereliction of duty, in violation of Article 92, UCMJ, but found the applicant not guilty of the remaining charges and specifications. Consequently, the military judge imposed punishment consisting of restriction to the limits of GAFB, Texas for 30 days and reduction to the grade of senior airman (SrA). On 14 Feb 11, the convening authority approved the findings and sentences as adjudged. On 23 Feb 11, the applicant’s case was reviewed by a judge advocate pursuant to Article 64, UCMJ, who determined the findings and sentence were correct in law and fact. As a result of his court-martial conviction, the applicant received a referral enlisted performance report (EPR) for the period 21 Mar 10 through 29 Sep 11. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request to set aside his court-martial conviction and sentence. JAJM states the Board’s ability to correct records related to courts-martial is limited. Specifically, section 1552(f)(1) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ. Additionally, section 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 section 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. Therefore, the Board cannot expunge the applicant’s court-martial conviction from his records, but may mitigate or set aside his punishment. The applicant alleges both error and injustice in his court- martial. His allegation is based on a time discrepancy between a photograph showing a truck driving through the base gate alleged to be his and the blotter entry as well as the incident report. Although the time stamp on the photograph is difficult to make out on the provided photograph, the applicant alleges that it shows this vehicle travelled through the gate 20 minutes prior to the time stated in the blotter and the incident report. The time stamped photograph and the incident report were both prosecution exhibits in the applicant’s court-martial. Additionally, the blotter entry was a defense exhibit. As such, the military judge had the opportunity to review these documents and note any discrepancies before rendering a finding of guilty on one of the specifications. Furthermore, the applicant had the ability to challenge these documents and argue the discrepancy during the court-martial. The military judge was in the best position to evaluate the evidence in this case. He heard testimony from the main witness against the applicant, Major M. and heard testimony from five additional witnesses, from both the prosecution and the defense. The military judge was able to weigh the testimony, the credibility of the witnesses and the documentary evidence in coming to his findings. It is hard to conclude that the military judge’s decision is anything other than neutral and unbiased considering he found the applicant guilty of only one of the three specifications and also wrote a letter in support of the applicant’s request for clemency to the convening authority. While clemency may be granted under 10 U.S.C. §1552(f)(2), the applicant provides little justification for his request, and clemency is not warranted in this case. In his request, the applicant relies heavily upon a letter written by the military judge in support of the applicant’s request for clemency to the convening authority. The military judge provides in part that the type of offense the applicant was convicted of usually results in non-judicial punishment, not a court-martial. Nonetheless, the commander has broad discretion in disposing of misconduct and the applicant’s commander elected to proceed with a court-marital for these offenses. The record shows that the applicant was afforded all of the procedural rights offered by the court-martial and appellate process. The applicant pled not guilty to the offenses and was able to have an impartial military judge decide whether the evidence showed, beyond a reasonable doubt, that the applicant had committed the offenses to which he pled guilty. During the pre-sentencing phase of the trial, the members heard evidence in aggravation, as well as extenuating or mitigating evidence from the applicant. The military judge evaluated the evidence and determined the appropriate punishment for the offense committed by the applicant. The punishment imposed by the military judge was under the maximum punishment permitted by law, which allowed the military judge to sentence the applicant to forfeiture of two-thirds pay per month for three months and confinement for three months. A review of the Record of Trial indicates that all of the applicant’s rights were observed throughout the court-martial process. The complete JAJM evaluation is at Exhibit C. HQ AFPC/DPSOE recommends denial of the applicant’s request to be given a line number to the grade of technical sergeant should his court-martial conviction be set aside and his promotion to the grade of staff sergeant be reinstated. DPSOE states the applicant is currently a SrA with a 3 Feb 11 date of rank (DOR) and a 29 Aug 12 date of separation (DOS). Based on these dates, the applicant will not be eligible for promotion consideration to SSgt before his separation date (unless he receives a favorable RE code). Should the Board set aside the court-martial and restore his rank to SSgt, he would be eligible for promotion consideration to the grade of TSgt during promotion cycle 12E6, provided he has a non-referral EPR, a favorable reenlistment (RE) code, and the recommendation of his commander. DPSOE states the applicant has never been considered or selected for promotion to TSgt and current AF policy does not allow for automatic promotion. The complete DPSOE evaluation is at Exhibit D. HQ AFPC/DPSOA recommends denial of the applicant’s request to change his RE code. DPSOA states the applicant was demoted on 3 Jan 11 per a court-martial sentence. The applicant’s RE code was changed to 4D, which denotes “Grade is SrA/E-4, completed at least 9 years total active federal military service (TAFMS), but fewer than 16 years TAFMS, and has not been selected for promotion to SSgt/E-5).” The applicant’s RE code of 4D is correct based on him being in the grade of SrA and having over 9 but fewer than 16 years of service. The complete DPSOA evaluation, with attachment, is at Exhibit E. HQ AFPC/DPAPP recommends denial of the applicant’s request to be considered for a PCS assignment. DPAPP states the applicant is currently ineligible to PCS due to his RE code and his inability to obtain the necessary service retainability required for a PCS move. Based upon his current rank and time in service (TIS), the applicant’s High Year of Tenure (HYT) is Dec 12. In order to be given a normal CONUS assignment, an Air Force member must be able to obtain 24 months service retainability to satisfy the move. The complete DPAPP evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: By letter dated 13 Apr 12, the applicant states he understands that when someone attempts to have a court-martial decision or punishment set aside, only the decision of the judge, jurisdiction or convening authority is questioned. He is not asking for the judges’ decision to be questioned, but instead he is questioning the evidence used to convict him. None of the security forces personnel including the commander knew it was possible to save the video camera footage, the blotter report, and the written statement made by Major M. after he was arrested at the gate. The applicant believes the reason that his was referred to a court-martial was not because of the incident but more so because of the accuser’s rank and authority as the security forces squadron commander. This belief stems from speaking with several individuals about incidents that they were involved in and the fact that they were not referred or considered for a court- martial. The applicant’s complete submission, with attachments, is at Exhibit H. _________________________________________________________________ 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 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. Although the applicant challenges the evidence used to convict him, we do not find his arguments sufficiently persuasive to override the rationale provided by the Air Force offices of primary responsibility (OPRs). Therefore we agree with the opinions and recommendations of the Air Force OPRs and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice regarding this issue. In the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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 Docket Number BC- 2011-04278 in Executive Session on 10 Jul 12, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-04278 was considered: Exhibit A. DD Form 149, dated 1 Nov 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 13 Jan 12. Exhibit D. Letter, AFPC/DPSOE, dated 30 Jan 12. Exhibit E. Letter, AFPC/DPSOA, dated 2 Mar 12, w/atch. Exhibit F. Letter, AFPC/DPAPP, dated 16 Mar 12. Exhibit G. Letter, SAF/MRBR, dated 20 Mar 12. Exhibit H. Letter, Applicant, dated 13 Apr 12, w/atchs.