RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  00-02409
            INDEX CODE:  A83.00

            COUNSEL:  NONE

            HEARING DESIRED:  NO


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APPLICANT REQUESTS THAT:

His  dishonorable  discharge  be  upgraded   and   his   court-martial
conviction be set aside.

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APPLICANT CONTENDS THAT:

The military judge erred by denying his motion to find the offenses of
manslaughter, negligent homicide,  assault  with  a  force  likely  to
produce grievous bodily harm, and assault  consummated  by  a  battery
upon a child, multiplicious, with the charge of unpremeditated murder,
thus prejudicing him.

The military judge erred in permitting a demonstration by a Government
expert witness, using a teddy bear, of the  amount  of  shaking  which
could cause the injuries suffered by his child,  and  that  the  judge
abused her discretion in permitting the trial counsel  to  repeat  the
demonstration in his closing argument.

The evidence was factually and legally insufficient to convict him  of
unpremeditated murder.

In finding him guilty of the abuse of the dog, the members excepted so
much of  the  language  contained  in  the  specification;  i.e.,  ”by
punching it, kicking it, about the ribs and body, picking  it  up  and
throwing it, and beating the said dog,” that specification  no  longer
stated an offense.

The staff judge  advocate’s  recommendation  incorrectly  advised  the
convening authority that the court-martial made “no  findings”  as  to
the two specifications, the court  set  aside  the  remaining  assault
charge, thus mooting the multiplicity issue.

The military trial judge erred by not allowing the defense to  present
evidence that when his child’s aunt was  caring  for  the  child,  she
observed on one occasion that the child was choking,  cyanotic  around
the lips, wide-eyed, and not breathing.  She picked up  the  child  up
and shook her to get a response.  She stopped  upon  remembering  that
babies should not be shaken.

In support of his appeal, the applicant provided a personal brief  and
extracts from his military personnel records.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 12 Dec  90  in  the
grade of airman basic for a period of four years.  He was dishonorably
discharged on 24 Jul 98 as a result of a general court-martial. He was
credited with 7 years, 3 months, and 21 days of active service.

The remaining  relevant  facts  pertaining  to  this  application  are
contained in the letters prepared by the appropriate  offices  of  the
Air Force.  Accordingly, there is no need to  recite  these  facts  in
this Record of Proceedings.

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AIR FORCE EVALUATION:

The Military Justice Division, AFLSA/JAJM, reviewed  this  application
and recommended denial.  JAJM noted that on 20 Oct 94, at Edwards AFB,
California, the applicant, then an airman first class, assigned to the
412th Component Repair Squadron (AFMC), was  convicted  by  a  general
court-martial composed of officer and enlisted members.  The applicant
was charged with murder;  manslaughter;  negligent  homicide;  assault
consummated by a battery upon a child; and assault with a force likely
to produce grievous bodily harm.  This was pled in the alternative and
all derived from the same act of the applicant violently  shaking  his
daughter on 2 Mar 93, which action allegedly resulted  in  her  death.
In addition, the applicant was charged with  three  specifications  of
maliciously torturing his cat and dog.  Contrary  to  his  pleas,  the
members found the applicant guilty of murder, the two assaults and the
animal torture.  They issued no findings as to  the  manslaughter  and
negligent  homicide.   The  applicant  was  sentenced  to   21   years
confinement and a dishonorable discharge.  This sentence was  approved
by the convening authority on 9 Jan 95.

AFLSA/JAJM indicated that the facts elicited at trial reveal that  the
applicant was watching his three children at the Edwards AFB Temporary
Living Facility, on the evening of 2 Mar 93, while his wife was  at  a
store.  He gave each of the six-month old twins a bottle and  went  to
the bathroom.  The applicant told his wife, when she returned, that he
heard his deceased daughter choking so he took  her  out  of  her  car
seat, hit her on the back, shook  her,  thrust  on  her  abdomen,  and
cleared her throat with his finger.  The responding security policeman
found the child not breathing and with no pulse when he arrived.   She
was revived, but declared brain dead  18  hours  later.   Neither  the
policeman who performed CPR nor the responding doctor found  any  sign
that the child was choking on her bottle or that she had  vomited,  as
claimed by the applicant.  The pediatric  neurologist  challenged  the
applicant's story that he shook her a little to clear her throat.  The
applicant then admitted that maybe he did shake the child harder  than
he said.

An autopsy was performed by  a  doctor  who  was  the  Deputy  Medical
Examiner, Los Angles County.  During her examination,  she  noted  two
sets of bruises on the hipbone which  she  determined  were  inflicted
just prior to the child being placed on life  support.   The  internal
examination revealed spinal cord subdural hematomas,  hematomas  along
the retinal nerve, and retinal hemorrhages.   The  doctor  also  found
separation of the brain layers  and  a  subarachnoid  hemorrage.   The
child’s brain injuries caused massive and rapid swelling of the brain.
 The cause of death, in the opinion of the doctor, was injuries to the
child’s brain.

Another doctor, the Professor of Pediatrics and Radiology,  University
of Iowa, who was a recognized expert in child  abuse,  testified  that
shaken baby syndrome is a  syndrome  in  which  an  infant  is  shaken
violently with such force that the acceleration and  deceleration  and
gravitational forces cause significant  brain  injury.   He  explained
that the violent shaking of the child causes connecting blood  vessels
in the brain  to  tear  apart  and  can  cause  optic  nerve  subdural
hematomas.  He also indicated that the spine can  be  injured  because
the baby almost jackknifes during the  course  of  the  shaking.   The
jackknifing causes bleeding around the spine in  the  epidural  space.
He described how the shaking causes the child  to  become  unconscious
and as a result, the crying will stop.  If the shaking is not  severe,
the child will wake up and  may  have  some  vomiting.   In  a  severe
shaking, the baby will develop seizures, rigidity, rolling up  of  the
eyes and will  stop  breathing.   A  review  of  the  medical  records
convinced the doctor that the cause of applicant’s daughter’s injuries
was a severe and violent shaking.

The doctor demonstrated  how  an  infant  would  be  shaken  to  cause
injuries such as the applicant’s daughter’s injuries.  He held a teddy
bear at arms length and shook it violently.  He shook the  teddy  bear
for seven seconds with the head going about three times per second  to
such an extent that the teddy bear was bent backwards several times.

In JAJM’s view, the court had sufficient evidence to conclude that the
applicant had the intent to kill or inflict grievous bodily harm  upon
his daughter.  All the issues raised  in  the  application  were  duly
considered by the Air Force Court of Criminal Appeals (AFCCA) and  the
Court of Appeals for the Armed Forces (CAAF), or appropriately decided
upon by the military trial judge.  Where required, the  findings  were
appropriately adjusted in accordance with the requirements of the law.
 The sentence as adjudged and approved was deemed appropriate by  both
courts.  The applicant has been afforded all of the relief required by
law and the interests of justice.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to  applicant  on  19
Jan 01 for review and response.  As of this date, no response has been
received by this office (Exhibit D).

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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 probable error or injustice.  We note that this Board
is not empowered to set aside or reverse the findings of guilty  by  a
court-martial.  Rather, in accordance with  Title  10,  United  States
Code,  Section  1552(f),  actions  by  this  Board  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.  There is nothing in the evidence provided, other
than the applicant’s unsubstantiated allegations, which would lead  us
to believe that a change to  the  actions  of  any  of  the  reviewing
officials is warranted.  We also 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).
Furthermore, because of  the  short  duration  since  the  applicant’s
separation and the serious nature of the offenses committed, we do not
find  upgrading  the  applicant’s  dishonorable  discharge  based   on
clemency is appropriate in this case at this time.   In  view  of  the
foregoing, we agree with the opinion prepared by the Military  Justice
Division and adopt their rationale  as  our  findings  in  this  case.
Accordingly, the applicant’s requests that his dishonorable  discharge
be upgraded and his court-martial conviction  be  set  aside  are  not
favorably considered.

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THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of probable  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.

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The following members of the  Board  considered  this  application  in
Executive Session on 14 Mar 01, under the provisions of AFI 36-2603:

      Mr. Terry A. Yonkers, Panel Chair
      Ms. Carolyn J. Watkins, Member
      Mr. John E. Pettit, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 3 Aug 00, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 27 Dec 00.
    Exhibit D.  Letter, SAF/MIBR, dated 19 Jan 01.




                                   TERRY A. YONKERS
                                   Panel Chair