RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2022-00098

XXXX X. XXXX	COUNSEL: NONE

	HEARING REQUESTED: YES  

APPLICANT’S REQUEST

Her Summary Court-Martial (SCM) dated 16 Nov 09 be removed.

APPLICANT’S CONTENTIONS

She was 19 years old when she pled guilty to assault and reckless endangerment, and has taken full responsibility for her actions.  For the last 12 years, she has stayed out of trouble and exceeded the Air Force expectations.  She is determined to overcome the incident, however the incident has closed a lot of opportunities for her.  She knows that is part of the punishment, but she is asking for the Board to remove the court martial from her record.  She would like the doors that have been shut to be opened back up.  Before the incident she was never in trouble, and after the incident she has stayed out of trouble.  The incident does not represent the person she is, and she has used it as a learning experience.  After recently talking with her local Area Defense Counsel (ADC), she was advised to submit an application to the Board for Correction of Military Records (BCMR).

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a currently serving Air Force master sergeant (E-7).

On 16 Nov 09, according to DD Form 2329, Record of Trial by Summary Court-Martial, at the trial proceedings the applicant did not object to trial by SCM, and was represented by counsel.  The applicant pled guilty to two charges, Article 128, Assault, and Article 134, General article.  The adjudged sentenced was for forfeiture of 1/2 month pay for 1 month, 45 days hard labor without confinement, and 45 days restriction.

On 25 Nov 09, the convening authority approved the sentence to be executed.

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

AIR FORCE EVALUATION

DAF/JA recommends denying the application.   After careful consideration, DAF/JA finds there was no error or injustice that would warrant removing the SCM record.  DAF/JA also finds that the interests of justice does not support removing the SCM record for reasons of clemency.  The applicant does not allege an error or injustice in the administration of the SCM.  Nevertheless, DAF/JA reviewed the record for a potential error or injustice and found none, most notably because the applicant volunteered to plead guilty to lesser charges in exchange for lesser punishment at an SCM. 

In regard to the applicant’s argument that she has demonstrated good conduct for the past 12 years, and that doors have been closed to her, DAF/JA interprets that to mean she requests correction on the basis of clemency.  DAF/JA finds that even if both contentions were true, the interests of justice do not tip the scale in favor of removing the SCM.  The applicant already received clemency from her commander by receiving a second chance in the form of an SCM.  Additionally, she was not reduced in rank and was also recommended for retention in the Air Force.  In the intervening years, she has performed her military duties admirably, for which she was promoted to master sergeant (E-7). 

Despite a record of good conduct, the fact remains that removal of her SCM record absent of an error or injustice, and only on the basis of clemency, would be an extraordinary form of relief that is not warranted in this case.  The record contains insufficient evidence or allegation of an error or injustice to undermine the applicant’s imposed punishment.  Furthermore, a correction on the basis of clemency is not warranted given the nature of the crime, the lack of extraordinary considerations, and the minimal impact of the SCM on the applicant’s military career.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 21 Mar 22 for comment     (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

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 concurs with the rationale and recommendation of DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, a correction on the basis of clemency is not warranted given the nature of the crime, the lack of extraordinary considerations, and the minimal impact of the SCM on the applicant’s military career.  Therefore, the Board recommends against correcting the applicant’s records.

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 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-2022-00098 in Executive Session on 17 May 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 22 Nov 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, DAF/JA, dated 17 Mar 22.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 21 Mar 22.

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.