RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05694 COUNSEL: NONE HEARING DESIRED: NOT INDICATED ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: The applicant submits his application through his Senator’s office and presents the following contentions: 1. The discharge and punishment he received from his court- martial was improper and unjust and was resolved through a civilian Pretrial Intervention (PTI) program. 2. The double-jeopardy policy was disregarded or not considered during his trial. 3. The County Solicitor did not surrender and declined the Air Force’s attempt to assume jurisdiction of the crime. 4. How did his court-martial supersede and not even take into account the civilian resolution which was completed prior to the court-martial? 5. His discharge was inequitable as it was based on an isolated civilian incident in almost 6 and 1/2 years of honorable service without any adverse actions or incidents. His military record before the incident was exemplary. 6. He has not had any criminal incidents except for a minor traffic offense since his discharge and humbly requests clemency. 7. He is currently attending college to obtain a degree in early education. His goal is to gain eligibility for the “Troops for Teachers” program through the military. In support of his request, the applicant provides a personal statement, copies of his DD Form 214, Certificate of Release or Discharge from Active Duty; enlistment/reenlistment documents, performance reports, military records, college awards and certificates, a PTI program brochure, and support/clemency letters. The applicant's complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 1 Dec 89. On 8 May 96, the applicant, then a senior airman, assigned to the Security Forces Squadron, pled guilty and was found guilty, during a general court-martial, of one charge and specification of conspiring to steal and staging a robbery of over $100 at a local casino, in violation of Article 81, Article 112a, Uniform Code of Military Justice (UCMJ); one charge and one specification of stealing $4,087 from a local casino, in violation of Article 121, UCMJ; and one charge and one specification of impeding an investigation into the staged robbery of the casino; in violation of Article 134, UCMJ. He was sentenced to a BCD, confinement for eight months, and a reduction to the grade of E-1. Because the applicant was in confinement, he was not allowed to continue the PTI program. On 25 Jul 96, the convening authority approved the findings and sentence. The applicant raised two assignments of error to the Air Force Court of Criminal Appeals (AFCCA). He asserted that it was unlawful for him to be court-martialed for the same acts disposed of by the South Carolina authority and that a recent change to the UCMJ violated the ex post facto clause of the U.S. Constitution in his case. On 14 Feb 97, AFCCA found no merit in these issues and affirmed the finding of guilty and the sentence. The applicant appealed the decision to the United States Court of Appeals for the Armed Forces (CAAF). On 14 Sep 98, the CAAF set aside the decision of the AFCCA and asked AFCCA to relook the ex post facto issue. CAAF agreed with AFCCA that the prosecution of the applicant in a court-martial was permitted and was not double jeopardy. On 8 Sep 99, AFCCA reconsidered the applicant’s assertion of a violation of the ex post facto clause and decided that the applicant’s reduction in grade prior to the date of the convening authority’s action was invalid. All automatic forfeitures pursuant to the new Article 58b was restored at the appropriate pay grade. AFCCA also reaffirmed the finding of guilty and the sentence. As a result, the applicant’s BCD was ordered and executed on 7 Jun 99. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant alleges the same error he did to the AFCCA and CAAF. Both courts received extensive written briefs and oral arguments from both defense and government appellate counsel. The applicant was granted his full appellate rights. The final result was the Air Force did not violate the double jeopardy clause and it was legal and allowable for the applicant to be prosecuted at a court-martial. At his court-martial, the applicant brought up the double jeopardy issue and the trial judge ruled that there was no violation. The applicant then pled guilty to the charges and specifications. The applicant, who was represented by military counsel, had the opportunity to demand the government prove the offenses against him. Prior to accepting his guilty plea, as evidenced by the record of trial, the military judge explained the elements and definitions of the offenses to which the applicant plead guilty, and the applicant explained in his own words why he believed he was guilty. The court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The applicant made an unsworn statement on his behalf stating that he knew he had committed a crime and that he deserved some punishment and asked for mercy for his daughter. He also continued to state that his prosecution by the Air Force was unjust as he was enrolled in the PTI program with the state. The court-martial took all of these factors into consideration when imposing the applicant’s sentence. The applicant’s sentence to a BCD, confinement for eight months, and a reduction to the grade of E-1 was well within legal limits and properly characterizes his service. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ Benefit Program was to express thanks to veterans’ personal sacrifices, separations from family, facing hostile enemy action and suffering financial hardships. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. It would be offensive to all those who served honorably to extend the same benefits to someone who committed crimes such as the applicant’s while on active duty. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In 1996, he and his then girlfriend and now wife, regretfully took the funds from the local establishment in an act of desperation that came from months of financial hardship and stress. Upon their arrest for the larceny, they were both eligible for the PTI program, due to it being a first offense. The victim and District Attorney’s office both supported intervention, plea of guilty, and return of monies. They both completed the program and her record was expunged and cleared. In May 96, he pled guilty to the charges to rectify his mistake and continue atonement for the crime. This was also the advice by his military counsel who instructed him to ensure that he completed the PTI program in case the double jeopardy inquiry was resolved so his record could be expunged. He completed all the requirements of the program which included: community service hours, restitution, financial counseling and “scared straight” counseling sessions. He was convicted of all charges during the court-martial and sentenced to confinement, reduction of rank, and a BCD. The conviction violated his pretrial agreement and immediately revoked the intervention and he was set a court date while incarcerated at the Charleston Correctional Facility. Although he had the support of his commander and first sergeant to recommend him for the Return to Duty Program (RTDP), the financial strain to his then fiancée and daughter compounded by his physical absence would not allow him to take advantage of the opportunity to resurrect his military career. His eight-month confinement sentence was reduced to six months due to good behavior and completion of all required programs. It was not realistic for him to complete a full 12-month intense correctional custody incarceration, new technical school and relocation without inflicting undue harm to his fiancée and daughter. His only option was to return to his family as soon as possible to begin the rebuilding of what he destroyed, his family and career. He has tried to live his life honorably and without any further mistakes or detrimental lapse in judgment. He has been humbled and remade through that year of turmoil. The double jeopardy inquiry has been discussed and upheld by the convening authority, however, that does not mean justice was served. The spirit of double jeopardy clause was broken in this case. The ex post facto clause had other ramifications with the loss of the income and family hardship. The reduction to the grade of E-1 with automatic forfeitures was not expected. His request for clemency is not unfair to any other member of the military. One misguided, immature, stress induced act does not tell or convey a veteran’s personal sacrifice, separation from family or financial hardship. The type of discharge does not tell the whole story of any veteran’s military life. He has paid his dues for his transgressions, more than once and by different agencies. His military record will show that he not only met but exceeded any expectations during his career. His clemency request is an attempt to redeem his record. It is his last chance. He was unable to utilize the RTDP prior to his discharge due to the ex post facto clause placing his family once again in financial hardship. In further support of his appeal, the applicant has provided a letter from his wife. The applicant's complete response, with attachment, is at Exhibit E. ________________________________________________________________ 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 error or injustice. We note 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 also find no evidence which indicates the applicant’s service characterization, which had its basis in his conviction by general court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the UCMJ. We have considered the applicant's overall quality of service, the general court-martial conviction which precipitated the discharge, and the seriousness of the offense to which convicted; however, we are not persuaded the characterization of his discharge warrants any upgrade. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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-2012-05694 in Executive Session on 17 Sep 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to Docket Number BC-2012-05694 was considered: Exhibit A. DD Form 149, dated 26 Dec 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 20 Feb 13. Exhibit D. Letter, SAF/MRBR, dated 24 Feb 13. Exhibit E. Letter, Applicant, dated 10 Mar 13, w/atch. Panel Chair