RECORD OF PROCEEDINGS

IN THE MATTER OF				DOCKET NUMBER: BC-2017-04279

XXXXXXXXXXXXX				COUNSEL: NONE

 							HEARING: YES 

APPLICANT REQUESTS THAT:

His records be corrected as follows:

a.  Acquitted of two specifications of Article 128-A7, for which he was court-martialed,

b.  Retired rank restored to staff sergeant.

APPLICANT CONTENDS THAT:

Evidence which found him innocent of the specification were omitted from his court-martial.  The alleged victim made a contradictory report to the police officer, stating no such offenses were committed.  Two civilian judges found him innocent of the same allegations.  His military conviction was determined by a panel of members who lacked legal expertise compared to the civilian counterparts.  The climate of the Air Force at that time may have unintentionally influenced the determination.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant is a retired Air Force senior airman.  

On 9 Aug 16, General Court-Martial Order No. 22, found the applicant unlawfully touched the victim on her body with his hands, and unlawfully punched the victim on her abdomen with his hand while the victim was pregnant.  

AF Form 356, Findings and Recommended Disposition of USAF Physical Evaluation Board, dated 31 Jan 17, found the applicant had medical conditions which were not compatible with military service and recommended temporary retirement with a disability rating of 60  percent.

Special Order ACD-03452, dated 9 Aug 17, and its amendment Special Order ACD-03704, dated 4 Sep 17, reflect effective 29 Oct 17 the applicant was placed on the temporary disability retired list in the grade of senior airman.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C and D.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the application.  

On 1 Apr 16, the applicant was tried by general court-martial for one charge and two specifications of sexual assault in violation of Article 120, UCMJ; and one charge and three specifications of assault in violation of Article 128, UCMJ.  The applicant pled not guilty to all charges and specifications.  The panel found the applicant not guilty of the charge and specifications of sexual assault, not guilty of one specification of assault, and guilty of the charge and two specifications of assault.  The panel sentenced the applicant to be reduced to the grade of E-2 and confined for 45 days.  On 16 Nov 16, the findings and sentence were found legally sufficient.  During the sentencing phase the accused was given the opportunity to submit any evidence which may diminish the severity of his offenses.

While the BCMR has no authority to overturn the court-martial conviction, it may, on the basis of clemency, adjust the sentence.  The sentence was within the permissible range for the offenses of which the applicant was convicted.  There is no legal basis to set aside the applicant’s court-martial sentence; however, whether the applicant’s grade determination should be set aside as a matter of clemency is within the purview of the BCMR.  The complete advisory is at Exhibit C.

SAFPC recommends denying the application.  

On 1 Aug 17, the SAF Personnel Council determined the applicant had not served satisfactorily within the higher grade of staff sergeant, but found he had served satisfactorily in the grade of senior airman.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 14 Aug 18 for comment (Exhibit E), but has received no response. 

THE BOARD CONCLUDES:

1.  The application was timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFLOA/JAJM and SAFPC and finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS:  

The applicant be informed that the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

The application was adjudicated without a personal appearance.

CERTIFICATION:  

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5., considered Docket Number BC-2017-04279 in Executive Session on 18 Aug 18:

	, Panel Chair
	, Panel Member
	, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:  Application, DD Form 149, w/atchs, dated 16 Sep 17.
Exhibit B:  Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Advisory opinion, AFLOA/JAJM, dated 6 Jun 18.
Exhibit D:  Advisory opinion, SAFPC, dated 1 Aug 18.
Exhibit E:  Notification of Advisory, SAF/MRBC to applicant, dated 14 Aug 18.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.