RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: 01-02616
INDEX CODE: 110.00
APPLICANT COUNSEL: None
SSN HEARING DESIRED: No
_________________________________________________________________
APPLICANT REQUESTS THAT:
His bad conduct discharge be upgraded to honorable and his time served
in confinement be counted as good time, which would give him enough
good time to qualify for retirement.
_________________________________________________________________
APPLICANT CONTENDS THAT:
The Air Force Command in England used the outcome of his court-martial
as an example. He was accused of driving while intoxicated (DWI); he
was never tested to determine his blood alcohol level. He was not
allowed to have English witnesses to testify for him. His 19 1/2 year
career was not taken into consideration. There was never a
determination of who was at fault for the accident. His court
appointed military defense counsel made derogatory remarks about his
character.
He has been carrying the remorse and shame for this for over 15 years.
The punishment awarded by the court martial was extreme and
unwarrantable; compared to the results of a current administrative
hearing of senior marine officers whose misconduct caused the loss of
lives and destruction of government property.
Applicant's complete submission, with attachments, is attached at
Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
The applicant enlisted in the Regular Air Force on 12 May 1967 for a
period of four years as an airman basic.
During the period in question, the applicant was assigned to USAF
Hospital at Beale AFB, CA. While on TDY in RAF Mildenhall, UK, the
applicant was involved in a motor vehicle accident, resulting in the
death of a military member and severely injuring several civilians.
The applicant was tried by general court martial from 25 August 1986
through 4 September 1986. He was charged in violation of Articles 119
and 111 of the UCMJ. Charge one was having through culpable
negligence, killed a passenger in a car then being driven by the
applicant, and with operating a passenger car while drunk, causing his
vehicle to strike another vehicle and injuring the passengers of the
other vehicle. The applicant was found guilty of the lesser charge of
negligent homicide (Article 134, UCMJ) and driving while drunk and
causing a motor vehicle accident and injuring others. He was
sentenced to a bad conduct discharge, confinement for two years and
six months, and reduction to E-1. In accordance to a pre-trial
agreement the convening authority approved only so much of the
sentence as provided for a bad conduct discharge, 24 months of
confinement and reduction to E-1.
On 26 February 1987, the Air Force Court of Military Review affirmed
the findings and sentence. On 4 September 1987, the U.S. Court of
Military Appeals denied the applicant's petition for review of the
lower court's decision. A final court martial order was issued
directing on 2 October 1987 that the bad conduct discharge be
executed. The discharge was executed on 5 November 1987.
Pursuant to the Board's request, the Federal Bureau of Investigation,
Washington, D.C., provided an investigative report which is attached
at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLSA/JAJM states the applicant has not provided any evidence to
substantiate that his court martial sentence was more severe than
others court-martialed or convicted for similar misconduct. A
stipulation of fact was submitted at the applicant's trial. The
stipulation of fact is commonly used when a guilty plea is
anticipated. Also, once a stipulation of fact has been entered, the
facts of the case are uncontradicted. The military judge explained
the stipulation of fact to the applicant to ensure that the applicant
had not signed or agreed to the document under coercion or duress; and
the applicant acknowledged that he understood the contents of the
stipulation fact.
According to the stipulation of fact the applicant was administered a
blood alcohol test approximately three and one-half hours after the
accident and it revealed the applicant's blood alcohol level was .145
milligrams of alcohol per deciliter of blood.
The applicant alleges that his attorney was court appointed, but in
fact the applicant requested that XXXXX. represent him and this was
approved by xxxx. The applicant's other attorney xxxx. was appointed
by xxxx. At trial, the judge explained to the applicant his rights
regarding counsel. The applicant informed the judge that he wished to
be represented at trial by XXXX and XXXXXX. There is nothing in the
applicant's record to support his allegation that his defense counsel
made disparaging remarks about his character. Nor, is there any
evidence in the applicant's record to indicate that he was denied the
opportunity to present testimony of English national witnesses on his
behalf.
The applicant's military records were introduced during the sentencing
phase of the trial and the applicant exercised his right to have
witnesses testify on his behalf and submitted other matters in
mitigation, to include his unsworn statement. In his unsworn
statement the applicant told the court-marital members: "I want you
to know that I am ready to accept my punishment, I know more than
anyone else in this courtroom the tragedy I've caused so many people."
Based on the information provided, JAJM recommends denying the
applicant's request.
A complete copy of the Air Force evaluation is attached at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluation and the FBI report were forwarded
to the applicant on 15 March 2002 and 28 June 2002, respectively for
review and response. As of this date, no response has been received
by this office.
_________________________________________________________________
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. Sufficient relevant evidence has been presented to demonstrate
the existence of injustice warranting an upgrade of the applicant's
discharge solely on the basis of clemency. In this regard, no
evidence has been presented which would lead the Board to believe the
applicant's discharge was improper or contrary to the directive under
which it was effected. The recommendation of the Air Force is duly
noted, however, we are of the opinion that upgrading the service
member’s discharge to general (under honorable conditions), based on
clemency, would be appropriate. Applicant’s request for an honorable
discharge was considered. However, we are not persuaded that any
further relief on the basis of clemency is warranted. Therefore, we
recommend the servicemember’s records be correct to the extent
indicated below.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force
relating to APPLICANT be corrected to show that on 5 November 1987, he
was discharged with the service characterized as general (under
honorable conditions).
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number 01-
02616 in Executive Session on 22 May 2002 and 16 July 2002, under the
provisions of AFI 36-2603:
Mr. Roscoe Hinton, Jr., Panel Chair
Mr. Laurence M. Groner, Member
Ms. Martha Maust, Member
All members voted to correct the records, as recommended. The
following documentary evidence was considered:
Exhibit A. DD Form 149, dated 27 Oct 01, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. FBI Report.
Exhibit D. Letter, HQ AFLSA/JAJM, undated.
Exhibit E. Letter, SAF/MRBR, dated 15 Mar 02.
ROSCOE HINTON, JR.
Panel Chair
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