RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01599 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: His dishonorable discharge be upgraded. ________________________________________________________________ _ APPLICANT CONTENDS THAT: His discharge was inequitable because it was based on a non- service related personal incident in his over six years of honorable service without any other adverse actions. He was only found guilty of sodomy, not forcible sodomy. He was not the initiator of the communication between him and the minor and the minor told him he was 17 years of age. During confinement, he has been a model inmate. For these reasons, he should not have been dishonorably discharged. In support of his appeal, the applicant provides a personal statement and copies of a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States; Air Force Court of Criminal Appeals (AFCCA) package; Record of Trial; Enlisted Performance Reports (EPRs); Personal Data Sheet; college transcripts; Honor Society acceptance letter; DD Form 214, Certificate of Release or Discharge from Active Duty; Air Force Parole and Clemency board discharge upgrade denials; Secretary of the Air Force discharge upgrade denial; Veterans Administration discharge upgrade denial; and Clemency, Corrections and Officer Review Division discharge upgrade denial. A copy of the applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who served on active duty from 3 December 2002 to 14 December 2012. On 10 July 2009, the applicant, then a staff sergeant (E-5), was tried and found guilty at a general court-martial of sodomy with a child who had attained the age of 12, but was under the age of 16, in violation of Article 125, Uniform Code of Military Justice (UCMJ); indecent liberties with a male under the age of 16; and giving alcohol to a minor, both in violation of Article 134, UCMJ. The applicant was also charged with forcible sodomy, in violation of Article 125, UCMJ, but was found not guilty. As a result, he was sentenced to a dishonorable discharge, eight years confinement, forfeiture of all pay and allowances, and reduction to the grade of airman basic (E-1). On 29 September 2009, the convening authority approved the findings and sentence. The forfeitures were deferred until action and all mandatory forfeitures were waived for a period of six months. The applicant appealed to the AFCCA, who set aside the findings of guilt to the indecent liberties and, providing alcohol to a minor, specifications. AFCCA affirmed the findings of guilt for the sodomy specification and reassessed the sentence, but found the sentence correct in law and fact and found no error prejudicial to the substantial rights of the applicant occurred. AFCCA issued their opinion on 29 June 2012. The applicant petitioned the United States Court of Appeals for the Armed Forces (USCAAF) for review. USCAAF denied the petition on 15 November 2012. The applicant’s dishonorable discharge was ordered to be executed on 10 December 2012. The applicant was dishonorably discharged effective 14 December 2009 after serving eight years, seven months, and seven days on active duty. He had lost time from 10 July 2009 through 14 December 2012. ________________________________________________________________ _ 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 Air Force Board for Correction of Military Record’s (AFBCMR) 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 reviewing authorities under the UCMJ. Additionally, Section 1552(f)(2) permits the correction of records related to 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 AFBCMR 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). Rules for Courts-Martial 1003(b)(8)(B) states that a dishonorable discharge “should be reserved for those who should be separated under the conditions of dishonor, after being convicted of offenses usually recognized in civilian jurisdictions as felonies…” Sodomy of a child is a felony in civilian jurisdictions. The applicant’s sentence to a dishonorable discharge, confinement to eight years, and reduction to the grade of airman basic, was well within legal limits. This discharge characterization was and continues to be part of a proper sentence and properly characterizes the applicant’s service. It is JAJM’s opinion that clemency in this case would be unfair to those individuals who honorably served their country while in uniform. It addition, it would be offensive to those who served honorably to extend the same DVA benefits to someone who committed crimes such as the applicant’s while on active duty. Upgrading the applicant’s discharge is not appropriate. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He understands that the UCMJ is our law and notes the comment by the Air Force Office of Primary Responsibility’s (OPR) that airmen convicted of a felony offense should receive a dishonorable discharge; however, sometimes our laws are unjust and unfair. He is not asking for time off of his sentence. He committed a crime and he has made peace with having to complete eight years of confinement for it. He simply asks for an upgrade to his discharge characterization. He did not intend to break the law. He did not intend to engage in intercourse with a minor. Had the minor been the age he claimed to be, he would not even be in prison. He can’t argue that his actions were not bad conduct in nature, but they were never dishonorable. The applicant’s complete rebuttal 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note 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), our actions are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency. We find no evidence which indicates that the applicant’s service characterization, which had its basis in his conviction by general court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). We have considered the applicant's overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offense to which convicted, and the absence of any documentation pertaining to post-service activities. Based on the evidence of record, we cannot conclude that clemency is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. ________________________________________________________________ _ 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-2013-01599 in Executive Session on 16 January 2014, under the provisions of AFI 36-2603: , Vice Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2013-01599: Exhibit A. DD Form 149, dated 30 Mar 13, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 10 May 13. Exhibit D. Letter, SAF/MRBR, dated 19 May 13. Exhibit E. Letter, Applicant, dated 10 Jun 13. Vice Chair 4 3