RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-00850 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: 1. His promotion to the grade of major be reinstated with a retroactive Date of Rank (DOR) and he receive the associated pay, allowances, leave and entitlements as a result of this promotion. 2. His Intermediate Developmental Education (IDE) select status (Air Command and Staff College (ACSC)) be reinstated. 3. All derogatory information be removed from all his personnel files, to include, Office of Special Investigations, Federal Bureau of Investigations, state and federal law enforcement databases. 4. In the alternate, the applicant requests that he be retired in his current grade. APPLICANT CONTENDS THAT: On 4 December 2007, he was convicted at a general court-martial. On 14 August 2013, the Court of Appeals for the Armed Forces (CAAF) reversed the decision of the Air Force Court of Criminal Appeals (AFCCA) and set-aside the finding of guilty and the sentence in his case. On 10 October 2013, the CAAF denied the government’s motion for reconsideration. On 16 January 2014, the convening authority removed him from appellate leave status and restored him to active duty. Based on these decisions and actions, he requests that he be retroactively promoted as though the conviction never occurred. In support of his requests, the applicant provides a personal statement, copies of court orders, memorandums, AF IMT 709, Promotion Recommendation and various other documents associated with his requests. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant was progressively promoted to the grade of captain in the Regular Air Force. He was subsequently selected for promotion to the grade of major with a projected date of promotion of 1 April 2008. On 4 December 2007, the applicant was tried at a General Court- Martial for the following offenses in violation of Article 134, Uniform Code of Military Justice (UCMJ): Specification 1: On divers occasions, from on or about 30 November 2000 to on or about 10 October 2001, the applicant committed indecent acts upon the body of a female under 16 years of age, not his wife, by touching her private parts with his hands, and by touching her private parts with a vibrator, with intent to gratify his sexual desires. Specification 2: On divers occasions, from on or about 30 January 2006 to on or about 30 April 2006, the applicant committed indecent acts upon the body of a another female under 16 years of age, not his wife, by touching her private parts with his hands, grabbing her hand and forcing her to touch his penis, by touching her leg with his penis, and by licking her private parts with his tongue, with intent to gratify his sexual desires. The applicant pled not guilty but was found guilty of all the charges. He was sentenced to confinement for 10 years, forfeiture of all pay and allowances and a dismissal. However, the applicant’s confinement period was reduced to 4 years. According to AF Form 4383, dated 25 March 2008, a promotion propriety action was initiated because the applicant failed to exhibit exemplary conduct and or there was cause to believe he was not mentally, physically, morally, or professionally qualified to perform the duties of the next higher grade. The commander noted the applicant was found guilty of committing indecent acts upon the bodies of two females under 16 years of age and therefore, based on the totality of the evidence, was unsuited for promotion to the grade of major and recommended his removal from the promotion list. The applicant acknowledged receipt of the promotion propriety action, consulted counsel and submitted written matter in his own behalf. On 1 April 2008, the Judge Advocate (JA) reviewed the promotion propriety action and determined it to be legally sufficient. On 2 April 2008, the commander recommended the applicant’s name be removed from the promotion list. On 20 May 2008, both the Judge Advocate General and General Counsel offices reviewed the promotion propriety action and determined it to be legally sufficient. On 19 June 2008, the Secretary of the Air Force (SECAF) approved the removal action. On 1 July 2008, the finding of guilty of Specification 1 of the Charge was set aside, and Specification 1 of the Charge was dismissed. The convening authority approved the applicant’s sentence to confinement for four years and a dismissal and directed he take involuntary leave pursuant to Article 76(a) UCMJ. On 14 August 2013, the CAAF set-aside the United States Court of Criminal Appeals (AFCCA) decision to affirm the guilty finding with respect to the Charge and Specification 2, committing indecent acts upon the body of female under the age of 16, because the specification failed to state an offense and the government failed to provide notice of the missing element during its case- in-chief. The CAAF remanded the case to the Judge Advocate General for the Air Force for further proceedings and authorized a rehearing on the affected charge and specification. In a memorandum dated 16 January 2014, the 2nd AF/CC notified the applicant that the CAAF set aside the findings and sentence in his case and that he was no longer on required excess leave and would be restored to active duty. In accordance with AFI 51-201, Administration of Military Justice, paragraph 9.38.5 states “If the accused’s sentence to a punitive separation is set-aside or disapproved upon appellate review, the accused is entitled to pay and allowances for the period of required excess leave, unless a rehearing or new trial is ordered and a punitive separation results from the rehearing. AIR FORCE EVALUATION: AFPC/DPSOO recommends denial of the applicant’s request to reinstate his promotion to the grade of major with a retroactive DOR. AFI 36-2501, Officer Promotions and Selective Continuation, states “commander’s question promotion when the preponderance of evidence shows the officer has not met the requirement for exemplary conduct set forth in Title 10 United States Code, section 8583, or is not mentally, physically, morally, or professionally qualified to perform the duties of the higher grade.” Air Force policy also states that formal rules of evidence do not apply to a promotion propriety action. All actions were reviewed by Air Force legal offices and were found to be legally sufficient to warrant the action taken. A complete copy of the AFPC/DPSOO evaluation, with attachment, is at Exhibit C. AFPC/DPSIM recommends denial of the applicant’s request for retroactive pay, allowances, leave and entitlements. During the time the applicant was in confinement and on parole he earned no leave. In addition, there is insufficient evidence that states he should have accrued leave days during 4 December 2007 to 14 October 2010. The applicant has not provided evidence that states he would be reimbursed during his appellate review. A complete copy of the AFPC/DPSIM evaluation, with attachment, is at Exhibit D. AFPC/DPAPFE recommends denial of the applicant’s request to reinstate his IDE select status. The applicant’s window of eligibility expired; therefore, there is no need to reinstate his DE select status. AFI 36-2301, Developmental Education, paragraph 6.3.1, “Board-identified IDE “selects” will attend resident IDE during their eligibility window as long as their performance continues to meet the high standards that merited their selection originally. An officer’s select eligibility window is based on the officer’s year group and DOR. The applicant’s eligibility window closed in 2010. A complete copy of the AFPC/DPAPFE evaluation is at Exhibit E. AFLOA/JAJM recommends denial of the applicant’s requests. On 24 May 2011, the AFCCA affirmed the approved findings and sentence. On 21 October 2011, the CAAF vacated the decision and remanded the case back to AFCCA. On 3 February 2012, AFCCA again affirmed the findings and sentence. On 10 July 2012, CAAF reversed AFCCA’s decision and returned the case for further consideration. On 14 March 2013, AFCCA, again approved the findings and sentence. On 14 August 2013, CAAF reversed AFCCA’s decision and set-aside the findings and sentence and a rehearing was authorized. On 25 March 2014, one specification and one charge were preferred against the applicant for allegedly committing indecent acts upon a female under the age of 16, in violation of Article 134, UCMJ. On 17 June 2014, the case was referred to a general court-martial. On 27 March 2015, the applicant was found guilty of the charge and its specification and sentenced to three years confinement and a dismissal. Given that the applicant has been found guilty at his re-hearing and sentenced to a dismissal and confinement, this application is moot. A complete copy of the AFLOA/JAJM evaluation is at Exhibit F. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Rules for Court Martial provides that: “[rehearing] procedure shall be the same as in the original trial.” Therefore, “the effect of ordering a rehearing is…to place the United States and the accused in the same position as they were at the beginning of the original trial.” Therefore, he has not been placed in the same position as he was at the beginning of the original trial. The CAAF determined it was plain and obvious error for the government not to allege all the elements of the offense he was charged, which materially prejudiced his substantial rights and impaired his ability to defend himself. AFPC/DPSOO’s advisory opinion states the actions were legally sufficient; however, they are incorrect. Specifically, AF Form 4363, which states the reasons for the Promotion Propriety Action lists both charges and does not take into consideration that, at the time, one of the charges was dismissed with prejudice by the Convening Authority. Therefore, the basis for which the action was taken was in error and renders the action legally insufficient. The oversight in itself is reason to declare his removal from the promotion list invalid. In addition, the Promotion Propriety Action is incomplete. The preponderance of evidence DPSOO references in their recommendation is the very same evidence which was thoroughly reviewed by two commanders in his chain of command with the same results…they both refused to prefer charges. At that point, the base legal office started to “shop around” until they were able to find an officer to do their bidding. Interestingly enough, that officer turned out to be the wing inspector general, who worked for the wing commander. The DPSIM advisory opinion only provides references to a current and/or final conviction, not a conviction which has been overturned and set-aside by a reviewing authority. The advisory cites areas from AFMAN 65-116, V1, Defense Joint Military Pay System Active Component (DJMS-AC) FSO Procedures which are beneficial to support their recommendation, but do not apply to him and his specific situation. The AFLOA/JAJM advisory opinion only recites the dates of his case history and cannot dispute the fact where the guiding case law dictates he be placed in the same position as he was before the original trial. His application is not moot and even by their suggestion insults, the authority given to the SECAF and Section 1552, Title 10 United States Code to correct an error or remove an injustice. He accepts and adopts AFPC/DPAPFE’s rationale that he is outside his window of eligibility; therefore, reinstatement of his IDE select status is not possible. Despite his innocence, he has suffered arduous punishment such as confinement and sex offender registration. His family has endured enough pain and suffering from this nightmare for the past 10 years to last a lifetime. If, after all his submission, the Board feels he has not provided sufficient, relevant evidence to favorably consider his requests, then in the alternative, he requests to be retired in his current grade. He is currently eligible for retirement with over 25 years of dedicated, and in his humble opinion, honorable service to his country. In further support of his appeal, the applicant provides copies of excerpts from US v. Von Bergen; AFMAN 65-116 v1; AF IMT 709, Promotion Recommendation Form, Court-Martial Order, character reference letters, previous Record of Proceedings, and various other documents associated with his request. The applicant’s complete submission, with attachments, is at Exhibit G. 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 injustice to warrant relief. The applicant argues that there was an error in law and believes he should have been restored to the position he was in prior to being sentenced by court martial or in the alternative be allowed to retired in the lower grade he held. However we disagree with his interpretation of the law as a basis for relief and feel it is taken out context. The applicant bases his request on the fact the CAAF set aside his convictions. However, it is noted that the court martial was set aside based on legal error and he was eventually retried and was sentenced. The conduct at issue in the original court martial and his subsequent conviction is still a matter of record. Consequently, the Board finds no merit in his request to be restored to his original condition or to allow him to retire. The Board notes the underlying basis for both the court martial and the promotion propriety action was the applicant’s illegal conduct and we find no merit in his argument that due to due to one of the charges being dropped, the basis for the promotion propriety action no longer exists. In this respect, we note that AFI 36-2504 instructs commanders to initiate propriety of promotion action when there is cause to believe an officer is not mentally, physically, morally, or professionally qualified to perform the duties of the higher grade. In our view, the egregious nature of the conduct of which the applicant has been subsequently convicted rises to a level that supports the commander acted within his discretionary authority to determine the applicant was not fit for promotion to the grade of major and to recommend to the Secretary the applicant’s name be removed from the promotion list. We note the subsequent approval by the Secretary was based on a review of all of the facts of the case and the action was determined legally sufficient after legal reviews. Given we find no merit in the applicant’s request for promotion, we therefore find no basis grant his requests for reinstatement of his IDE and ACSC select status. While the applicant requests all derogatory information be removed from his personnel files, this Board is without authority to set aside, reverse, overturn, or otherwise expunge a court-martial conviction from an applicant’s record and the applicant has not provided sufficient evidence of any other documents erroneously filed in his personnel record. Additionally, the applicant has referenced several BCMR cases (BC-2004-01344, BC-2006-01168, BC-2000-03241, BC-1998-00094, and BC-2002-01094) he believes support his request for relief. However, we note that every case before this Board is considered on its own merit since the circumstances of each case are seldom identical. We have reviewed the facts of the referenced cases and find the circumstances of the cases to be distinguishable and that no facts are provided which bolster the applicant’s request for relief. The applicant’s numerous contentions are duly noted; however, in our view, the applicant has not provided substantial evidence which, in our opinion successfully refutes the assessment of his case by the Air Force Offices of Primary Responsibility (OPRs). Therefore, we agree with the opinions and recommendations of the Air Force OPRs and adopt the rationale expressed as the primary basis for our decision the applicant has failed to sustain his burden of having suffered an injustice. In view of the above and in the absence of evidence he was denied rights to which he was entitled, we find no basis to recommend granting any of the relief sought in 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-2014-00850 in Executive Session on 14 Jul 15, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00850 was considered: Exhibit A. DD Form 149, dated 24 February 2014, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOO, dated 4 May 2014, w/atchs. Exhibit D. Letter, AFPC/DPSIM, dated 19 June 2014, w/atch. Exhibit E. Letter, AFPC/DPAPFE, dated 3 March 2015. Exhibit F. Letter, AFLOA/JAJM, dated 4 June 2015. Exhibit G. Letter, SAF/MRBR, dated 11 June 2015.