RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00923 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ _ APPLICANT REQUESTS THAT: 1. His general court-martial conviction be reversed. 2. He be promoted to the grade of staff sergeant ((E-5). ________________________________________________________________ _ APPLICANT CONTENDS THAT: His 6th amendment right was violated during his court-martial resulting in a violation of his 5th amendment right. Specifically, he did not have the opportunity to confront and cross-examine witnesses. In addition, he was selected for promotion to staff sergeant prior to his court-martial incident, but the promotion was withheld pending the trial outcome. In support of his appeal, the applicant provides personal statements, and copies of a legal opinion from his 1970 appeal to the AFBCMR, a 1977 letter to President Carter, a 1968 clemency recommendation, a 1968 Post-Trial Clemency Evaluation, a 1999 advisory opinion concerning his appeal for the Purple Heart Medal, favorable communications, award citations, character references, letter of evaluation, letters of appreciation, letter of commendation, letters of recommendation, petitions form German Nationals, a clemency report, and Department of Veteran Affairs documents. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: On 15 August 1968, the applicant, then a sergeant, stationed at Sembach Air Base, Germany, was tried by a general court-martial for one specification of negligent homicide, in violation of Article 134, Uniform Code of Military justice (UCMJ). He was charged with failure to yield the right of way when entering a main highway causing his vehicle to collide with another vehicle driven by a local national resulting in that individual’s death. At the general court-martial, before officer members, the applicant pled not guilty, but was found guilty of the charge. He was sentenced to six months confinement, forfeiture of $50 a month for six months, and a reduction to airman basic (E-1). On 30 August 1968, the convening authority approved the findings and sentence as adjudged. The applicant’s case was reviewed pursuant to Article 69, UCMJ, and found to be supported by law. The Judge Advocate General did not direct review by the Air Force Board of Review. The applicant was honorably discharged on 31 December 1968 after serving 4 years, 6 months, and 20 days on active duty. The applicant submitted similar appeals to the Air Force Board for Correction of Military Records (AFBCMR) in 1970 and 1971; however, after Board consideration, his appeals were denied. ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that under Title 10, United States Code (USC), Section 1552(F), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts-martial, is limited. Specifically, section 1552(f)(1) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ. Additionally, section 1552 (f)(2) permits the correction of records related to an action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of section 1552(f) is that the Board is without authority to reverse, set-aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). Since his discharge, the applicant has submitted letters to President Nixon (1970) and President Carter (1977). He has also submitted requests for his conviction to be set-aside on two separate occasions. In 1970, their office provided a response to the applicant’s contentions; however, his claims have changed to now assert a violation of his Constitutional rights. The confrontation clause included in the 6th Amendment to the Constitution only applies to witnesses. A statement by a judge advocate in argument or in a legal opinion can be addressed by the applicant by either his defense counsel or in a written response. The applicant had the opportunity during his court- martial and has continued to take advantage of providing written responses through his multiple requests to this Board and other government agencies. The record of trial does not contain any evidence that the applicant did not have the opportunity to confront all witnesses who testified against him. After the direct examination of all five witnesses the prosecution questioned during the findings portion of the court-martial, the applicant’s civilian defense attorney would go through a very thorough cross-examination of the witness. One witness was disposed before trial due to unavailability and the applicant’s defense counsel was present during the disposition and did cross-examine the witness during the deposition. A panel of six officers heard the evidence from both the prosecution and defense and decided the applicant was guilty of negligent homicide. This decision was reviewed by the convening authority in accordance with Article 60, UCMJ, and by a judge advocate under Article 69, UCMJ. The findings and sentence were approved and found to be supported by law. The complete JAJM evaluation is at Exhibit C. AFPC/DPSOE defers to AFLOA/JAJM citing JAJM has determined there were no legal errors requiring corrective action regarding the applicant’s court-martial sentence. DPSOE states they are unable to verify whether the applicant was considered for promotion to staff sergeant as promotion history files are only maintained for a period of ten years as outlined in Air Force Manual 37-139, Records Disposition Schedule, Table 36-22, Rule 29. Ten years is generally considered an adequate period to resolve any promotion inquires or concerns. The complete DPSOE evaluation is at Exhibit D. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: It appears the Air Force continues to maintain status quo to protect its image without regard for his civil rights. For social or military change to take place, the status quo needs to be challenged in its axiomatic conclusion of the issue of discredit or prejudice to have occurred in the issues before the wrongful conviction of military members. He does not argue the constitutionality of Article 134. If he had received a punitive discharge as a result of his conviction, he would have had appeal rights which may have resolved the matter in a favorable disposition. This may have allowed him to continue his military career, which was an option he had considered prior to and during his court-martial proceedings. When one considers his post-conviction accomplishments, he would have been a significant asset to the Air Force in any career field. His original intent upon seeking reversal of his conviction was to be returned to active duty to serve his country as he had previously. His educational accomplishments would have provided him with more skills to perform his duties as a medic or investigator. Unfortunately, his loss of rank and the derogatory impact of his conviction would have stigmatized him and prevented him from having a significant career with the Air Force. His continued pursuit of redress in this matter demonstrates his tenacity, a strong trait for a career in any field, especially in a healthy distrust of the government. The applicant’s complete rebuttal is at Exhibit F. ________________________________________________________________ _ 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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. We note the applicant’s contentions that “he did not have the opportunity to confront and cross-examine witnesses;” however, the record of trial does not contain any evidence that he or his defense attorney did not have the opportunity to confront all witnesses who testified against him. Therefore, in the absence of evidence to the contrary, we do not find it in the interest of justice 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 issues 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-2013-00923 in Executive Session on 3 December 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2013-00923: Exhibit A. DD Form 149, dated 19 Feb 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 11 Apr 13. Exhibit D. Letter, AFPC/DPSOE, dated 29 Apr 13. Exhibit E. Letter, SAF/MRBR, dated 31 May 13. Exhibit F. Letter, Applicant, dated 13 Jun 13. Panel Chair 2 3