RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00618

XXXX X. XXXX	COUNSEL: YES
	
	HEARING REQUESTED: NOT INDICATED

APPLICANT’S REQUEST

Through counsel, upgrade his bad conduct discharge to honorable.

APPLICANT’S CONTENTIONS

His chain of command made a material error in law when charging, convicting, and sentencing him in the 11 Aug 81 special court-martial after being acquitted in the 13 Jun 80 special court-martial.  The doctrine of double jeopardy is a well-grounded principal in criminal law that prevents a person from being forced to defend the same charge brought against him multiple times.  His acquittal constituted a final adjudication of the charges and jeopardy therefore had attached and terminated as to bar any further prosecution. 

In criminal trials, the doctrine of res judicata precludes the prosecution from re-litigating a matter determined in the accused’s favor by a previous final judgment, whether the present trial is for the same or a different offense and whether the previous proceeding culminated in an acquittal, a conviction, or otherwise.  In his case, the chain of command incorrectly applied the law when attempting to circumvent the res judicata defense by withdrawing the Article 131 violation (perjury) and renumbering the charge as a violation of Article 134 (wrongful use of marijuana).  The charge should have been withdrawn and dismissed in accordance with the guarantees of the Fifth Amendment of the United States Constitution.          

Furthermore, he was the victim of an error of fact during the court martial sentencing stage.  The court erroneously believed he had a previous conviction from his prior court-martial, which was incorrect.  This incorrect information led to a harsher sentence than what he should have received.  This represents a critical error in his court-martial proceedings and one that should be rectified by the Board. 

He was diligent in his military career in performance of his duties and by the various awards and recognitions in service, and since separation, continued his outstanding record of diligent work ethic, pursuit of education and giving back to his community.  He has put the needs of others above his own in both the military and civilian life.  It would be in the interest of justice to grant relief.  In support of his request, the applicant provides copies of military kudos, numerous post service certificates of achievement, Graduation Certificate, Dean’s Honor Roll Certificate, 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 1 Jan 79, according to Special Order AB-2, the applicant was promoted to airman first class (E-3), effective 25 Jan 79. 

On 10 Oct 80, according to Special Court-Martial Order No.16, the applicant was found not guilty of violating Article 134, wrongful use of marijuana on divers occasions between 13 Feb – 27 Apr 80.  

On 14 Oct 80, according to Special Order AB-1369, he was promoted to senior airman (E-4), effective 1 Oct 80.   

On 14 Nov 80, his commander did not select the applicant for reenlistment.  

On 28 Apr 81, according to AF Form 909, Airman Performance Report, reporting period 29 Apr 80 – 28 Apr 81, the applicant’s rater and first indorser recommended the applicant be denied promotion and reenlistment.  

On 1 May 81, the applicant was placed in confinement for violation of Article 134, and on 16 Jul 81, he was released from confinement.  

On 11 Aug 81, according to Special Court-Martial Order No. 8, the applicant’s charge I, violation of Article 131 (perjury), was dismissed on the grounds of res judicata.  With regard to charge II (renumbered charge), violation of Article 134 (wrongful use of marijuana), the applicant was found guilty of specification 1 (wrongful use of marijuana, between 4 – 30 Nov 80) and not guilty of specification 2 (wrongful use of marijuana, between 1 – 13 Feb 80).  He was sentenced to a bad conduct discharge, 3 months confinement, and hard labor, forfeiture of $200 per month for six months, and reduction in grade to E-1. 

On 18 May 82, according to Special Court-Martial Order No. 31, his sentence was affirmed.  

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 Mar 20, the Board sent the applicant the clemency bulletin and a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 25 Mar 20 (Exhibit D).  According to the report, the applicant was arrested on 20 Jun 87 for driving with a suspended license.  
 
APPLICABLE AUTHORITY

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance (Wilke Memo) 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.  The relative severity of some misconduct can change over time, thereby changing the relative weight of the misconduct in the case of the mitigating evidence in a case.  For example, marijuana use is still unlawful in the military, but it is now legal under state law in some states and it may be viewed, in the context of mitigating evidence, as less severe today than it was decades ago. 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.

The entire guidance can be found at Exhibit C.

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 June 2017, paragraph 1.18, the types of service characterization are as follows: 

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. 

AIR FORCE EVALUATION

AF/JAJI recommends denying the application.  The applicant, through counsel, challenges the bad conduct discharge on two grounds.  First, he claims that after the prosecution’s attempt to charge him with perjury was barred on res judicata grounds, the prosecution wrongfully withdrew the Article 131 violation and renumbered the charge as a violation of Article 134.  Second, he claims that the erroneous one previous conviction was considered and led to a harsher sentence than what the applicant should have received.
 
In accordance with 10 U.S.C. §1552(f), the Board has no authority to overturn the applicant’s court-martial conviction, but may adjust the sentence on the basis of clemency.  The approved sentence was within the permissible range for the offense of which the applicant was convicted.  The applicant has not submitted any new evidence or information that casts doubt on the outcome of his trial.
 
The applicant’s claim, through counsel, that res judicata and double jeopardy barred his court-martial conviction misstates the facts of the 1 May 81 court-martial.  The prosecution did not repackage the barred perjury charge as a violation of Article 134, UCMJ, and then convict the applicant of the same alleged misconduct.  The applicant was charged with perjury and drug use; after res judicata barred the perjury charge, he was convicted of drug use under Article 134, UCMJ. The applicant’s res judicata claim is not relevant to that offense; therefore, the conviction is not the product of double jeopardy.

Regarding the applicant’s allegation that the sentencing authority or convening authority considered a non-existent prior conviction in determining the sentence, the applicant raises this error in his application nearly 39 years after the alleged error appeared in his court-martial order and after two appellate courts had reviewed the case.  It is unknown whether the applicant alleged this error in his brief to the Air Force Court of Military Review in 1981 and subsequent petition to the Court of Military Appeals, but he had a significant opportunity to get relief on it at that time.  Moreover, a bad conduct discharge is not an unreasonable sentence for use of marijuana on multiple occasions, given the time period in question.  Therefore, they find no basis to set aside the sentence adjudged at the Applicant’s court-martial.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 29 Sep 20 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 did exhaust all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant has presented evidence sufficient to demonstrate an injustice regarding part, but not all, of his request.  While the Board notes the rationale and recommendation of AF/JAJI against correcting the record and finds no error in the original discharge process, the Board recommends partial relief based on clemency.  In particular, the applicant provided numerous post-service achievements and a nearly flawless criminal history report.  However, the Board weighed the evidence and post-service achievements against the gravity of his in-service misconduct and finds only partial, not full relief, appropriate.  Therefore, the Board recommends correcting the applicant’s records as indicated below.
   
4. 	The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that on 21 Jun 82, he received an “Under Honorable Conditions (General)” discharge with a narrative reason for separation of “Secretarial Authority” and a separation code of “JFF.” 

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-2020-00618 in Executive Session on 3 Dec 20:

Mr. Panel Chair
Mr. Panel Member
Ms. Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 16 Jan 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs, dated 6 Mar 20.
Exhibit D:	Counsel’s email response, w/atchs, dated 25 Mar 20
Exhibit E:	Advisory opinion, AF/JAJI, dated 25 Sep 20.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 29 Sep 20.

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.