RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00292

xxxxxxxxxxxxx	COUNSEL: XXXXXXXXX

		HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.  The Board grant relief from his court-martial sentence.

2.  His bad conduct discharge (BCD) be upgraded to honorable.

3.  He be awarded the Small Arms Expert Ribbon [sic]

APPLICANT’S CONTENTIONS

He readily admits that his actions in the late 1990s fell below the expected standards of airmen and he truly regrets how his actions reflected poorly upon himself and the Air Force as a whole. However, he has worked exceptionally hard since his discharge to prove to himself, his family and friends, and everyone that he meets, that he is a man of outstanding character and someone that can be relied upon in times of need.  He now seeks to put his BCD in the past so he may speak proudly about his military service without the feeling of dread and remorse when he reflects upon his discharge characterization.

In support of his request for clemency, the applicant provides a personal statement and several character reference letters, copies of numerous post-service certificates of achievement, training and certifications, civilian memberships, and other documents related to his request for upgrade. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1). 

On 8 Aug 97, the convening authority published General Court-Martial Order XX.  The Order stated the applicant pled guilty to numerous charges; conspiring to distribute ecstasy (Article 80); failure to refrain from possessing a firearm in his dormitory (Article 92); signing a falsified statement (Article 107); theft (Article 121); two counts of wrongful use of drugs, marijuana and lysergic acid diethylamide (Article 112a);  assault (Article 128); and five counts under Article 134, wrongfully discharging a firearm, impeding an investigation by making death threats, unlawfully carrying a concealed weapon, and fraudulently obtaining services under false pretenses.  The applicant was sentenced to confinement for 179 days, forfeiture of all pay and allowances, reduction to the grade of airman basic, and discharge from the service with a BCD.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit E.

POST-SERVICE INFORMATION

On 6 Feb 20, the Board sent the applicant a request for post-service information, including a request for a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 5 Apr 21 (Exhibit D).  According to the report, the applicant was arrested on 21 Mar 99 for theft by check.  His counsel submitted a court document showing this charge was dismissed, stating his checkbook was stolen.
 
APPLICABLE AUTHORITY

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 reflecting actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P& R) issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 6 Feb 20, the Board staff provided the applicant a copy of the clemency guidance (Exhibit C).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

AFPC/DP3SP recommends denying the applicant’s request for the Small Arms Expert Marksmanship Ribbon (SAEMR).  There was no documentation located within the applicant’s record or provided to indicate he qualified as expert with either the M-16 rifle (to include the M-4 and GAU-5) or an issued handgun.  Per AFM 36-2806, Awards and Memorialization Program, section A14.33.1, eligibility for the SAEMR is awarded to regular Air Force, Air National Guard and Air Force Reserve members, who, after 1 Jan 63, qualify as “Expert” with either the M-16 rifle (to include the M-4 and GAU-5) or an issued handgun on the Air Force qualification course, an appropriate orientation course prescribed in other Air Force Instructions, other Military Services’ qualification course, or who satisfactorily complete the Combat Rifle Program.  Per section A14.33.2, members who, after 22 Jun 72, qualify as “Expert” with both the M-16 rifle (or M-4 or GAU-5) and an issued handgun, wear a bronze service star on the ribbon.  Per section A14.33.3, an AF Form 522, Ground Weapons Training Data and USAF Firearms Qualification, or a letter from the small arms marksmanship monitor is used as the source document for this award.  Members who qualify as “Expert” provide a copy of the AF Form 522 or letter to the manpower and personnel flight for update in the member’s personnel records.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 2 Nov 21 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations period established by 10 U.S.C. § 1552(b).

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board finds no evidence that the sentence of the military court was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice.  The Board also considered the passage of time, the overall quality of the applicant’s service, the seriousness of the offenses committed, and the applicant’s post-service conduct.  However, the Board finds no basis for clemency in the case.  Additionally, the Board concurs with the rationale and recommendation of AFPC/DP3SP and finds a preponderance of the evidence does not substantiate the applicant’s contention to be awarded the Small Arms Expert Marksmanship Ribbon, finding no documentation that the applicant qualified as expert with either the M-16 rifle (to include the M-4 and GAU-5) or an issued handgun.  Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown that a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2020-00292 in Executive Session on 26 Jan 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 31 Dec 19.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency  
                  Guidance), dated 6 Feb 20.
Exhibit D: Applicant’s Response, w/atch FBI Report, dated 5 Apr 21.
Exhibit E:	Advisory Opinion, AFPC/DP3SP, dated 31 Oct 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 2 Nov 21.

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