RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-00126 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), be set aside or remedial alternatives be implemented to set-aside the punishment. _________________________________________________________________ APPLICANT CONTENDS THAT: The Article 15 is a continuing injustice and is having an effect on him since being discharged from the Air Force. He believes it will have a negative affect on his profession as an attorney, his reputation as a pillar of his community, and his character as an honorably discharged veteran. He was never informed or aware of the avenues and deadline for appeal or alternative relief for accepting the Article 15. He was neither aware of or informed of the protracted, unjust ramifications of accepting the Article 15 and the effect it would have on the remainder of his military service, as well as his post-military personal and professional life. He believes that receiving an Article 15 does not constitute an admission of guilt. His counsel at the time provided him with substandard legal advice regarding his situation. His counsel discouraged him from seeking private counsel, stating they only “cash your checks.” His counsel did not inform him of the 5-day window for appealing an Article 15 nor was he informed of any of his options to defend against the charge. He refers to Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) holds that “The right to counsel is the right … to effective assistance of counsel.” He submits that his right to counsel inasmuch as it was related to the effective assistance of counsel in this matter was not upheld to the standard established by Strickland v. Washington. He applied for executive clemency authorized under Article II, Section 2, of the United States Constitution in Mar 08, but was denied for lack of form, because although it has no inherent expiration, the Article 15 is not a criminal conviction. Hypothetically, he would have had the opportunity to mitigate it with a Petition for Presidential Pardon had a conviction occurred. He respectfully requests a retroactive set-aside of this Article 15, or retroactive appeal, in the interest of justice because of the rationale described above is sufficient evidence of the continuing injustice and active stigma the Article 15 represents. After weighing the totality of the circumstances involved in this case, if the Board remains not persuaded the continuing stigma and injustice he is experiencing does not merit mitigation, he requests and whole-heartedly welcomes, any suggestion the Board may have regarding remedial alternatives to setting-aside the punishment. He is licensed to practice law in New Jersey and has done so successfully for almost 4-years without a single allegation of impropriety. He considered sending character references with his appeal; however, he does not want to impose on the valued attorney-client relationships unless the Board requires further evidence of his admirable character. Furthermore, he volunteered hundreds of uncompensated hours to historical preservation, natural conservation, and special needs services. In support of his request, the applicant provides a copy of a letter from AFLSA/CCDC, a copy of AF Form 3070, Record of Nonjudicial Punishment Proceedings, and a copy of his Petition for Pardon after Completion of Sentence package. His complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant served in the Regular Air Force in the grade of Captain, having assumed that grade effective and with a date of rank of 8 Jan 08. He received an Article 15 on 1 Nov 05 for bringing a Chino P-32 Caliber handgun in a hollowed-out book, inside a briefcase, and then left the briefcase containing the handgun sitting in a public parking lot, conduct which under the circumstances was unbecoming an officer and a gentleman. He forfeited $1250.00 pay per month for 2 months. The applicant received an honorable discharge on 8 Jul 07 after serving 8 years, 6 months, and 1 day on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant accepted the Article 15 proceedings and waived his right to demand trial by court-martial. He presented written matters to and personally appeared before the commander. The commander found the applicant had committed the offense and imposed punishment. On 1 Nov 05, his commander notified him the Article 15 would be filed in an Unfavorable Information File. The applicant acknowledged receipt on the same date. After a legal review, the staff judge advocate found it to be legally sufficient. The application is untimely. Even assuming the applicant’s counsel told him nothing about the appeal process, it is hard to credit the applicant’s claim that he was “neither informed nor aware of the avenues and deadline for appeal” of the Article 15. AF Form 3070, Block 4c, notifies the applicant that he must notify the commander by 1230 hours, 2 Nov 05, whether he appeals the action. On 28 Oct 05, at 1230 hours, the applicant signed Block 5 of the form indicating he acknowledged receipt of the punishment and his “right to appeal.” After three days, the applicant signed Block 6 and initialed next to the line “I do not appeal.” Block 6 states, “member’s decision ends the time limit to appeal.” There is no indication, other than the applicant’s assertion, that either of the Area Defense Counsels (ADCs) were anything other than zealous advocates. In order to convict the applicant of the charged offense at a court-martial, the government would have had to prove, beyond a reasonable doubt that he: a. Brought a handgun onto McGuire Air Force Base, New Jersey and then left that briefcase containing the handgun sitting in a public parking lot. b. Under the circumstances, that conduct was unbecoming an officer and a gentleman. Based on the information available in the Automated Military Justice Analysis and Management System (AMJAMS), the government would have had sufficient evidence to prove the charges beyond a reasonable doubt. Considering the good chance the applicant would have been found guilty at trial, had a federal conviction on his record and could have faced a punitive discharge and confinement, his ADC provided effective assistance. The applicant does not make a compelling argument to overturn the commander’s original decision based on clemency. The commander had the best opportunity to evaluate the evidence in the case and weigh it against the applicant’s written response and verbal presentation at that time. The AFLOA/JAJM complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a four-page response, the applicant provides a detailed explanation as to why the evaluation should not be considered. Specifically, he cites the following reasons: 1) it asserts facts not in evidence; 2) it includes a moot application of the timeliness requirements for filing; 3) it insufficiently refutes the claim that he received inadequate counsel; and 4) it fails to address several critical elements of injustice upon which his application has been based. The applicant’s complete submission, with attachments, is at Exhibit E. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice. After a thorough review of the evidence of record and applicant's submission, we are not persuaded that his uncorroborated assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force. Therefore, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt the rationale expressed as the basis for our decision the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice. Therefore, in the absence of persuasive evidence to the contrary, we find no basis to recommend granting the relief sought in this application. 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 our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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-2011-00126 in Executive Session on 20 Sep 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Nov 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 4 Mar 11. Exhibit D. Letter, SAF/MRBR, dated 11 Mar 11. Exhibit E. Letter, Applicant, dated 11 Apr 11. Panel Chair