RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00159
            INDEX NUMBER:  126.00
            COUNSEL:  None

            HEARING DESIRED:  No

_________________________________________________________________

APPLICANT REQUESTS THAT:

The Article 15 imposed on him on 19 Dec 03 be set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

He was found guilty of the offense of sodomy under the  wrong  article
of the Uniform Code of Military Justice (UCMJ)  in  violation  of  the
preemption doctrine.  He should have been charged  under  Article  125
vice Article 134.

In support of his appeal, applicant provides a copy of the Article 15,
a copy of a letter sent  to  his  squadron  commander  from  his  area
defense counsel (ADC) contesting the  applicant  being  charged  under
Article 134 of the UCMJ vice Article 125.

Applicant’s complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered active duty in the Air Force on 29  Jul  98  and
was progressively promoted to the grade of staff sergeant  (E-5).   On
11 Dec 03, his squadron commander notified him that he was considering
punishing him under Article 15 of the UCMJ for the alleged offense  of
committing sodomy, in violation of  Article  134  of  the  UCMJ.   The
applicant accepted proceedings under Article 15 and attached a written
presentation.  On  19  Dec  03,  the  commander  determined  that  the
applicant had committed one or more  of  the  alleged  offenses.   The
commander imposed punishment consisting of reduction to the  grade  of
senior airman (E-4), 14 days of extra  duty,  and  a  reprimand.   The
applicant appealed the punishment.  The appellate authority denied the
applicant’s appeal.

A review of  the  applicant’s  enlisted  performance  reports  reveals
overall ratings of “5” (applicant’s EPR closing out after the  Article
15 is not yet included in the personnel data system).
_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM  recommends  denial  of  the  applicant’s   request.    The
applicant contends he should have been charged under  Article  125  of
the UCMJ (sodomy).  The  applicant’s  ADC  also  referenced  the  U.S.
Supreme Court case,  Lawrence  and  Garner  v.  Texas,  in  a  written
response to the Article 15, contending that  the  Supreme  Court  held
that  it  was  unconstitutional  for  the  government  to  criminalize
consensual sodomy.  This view is inaccurate as  the  Court  held  that
states could not make private consensual sexual conduct  a  crime  and
focused on the fact  that  the  consensual  sexual  act  was  done  in
private.  In the applicant’s case, he and  another  Air  Force  member
participated in sexual acts with the victim in this  case.   Moreover,
it has not been determined what effect this case  will  have  on  UCMJ
Article 125.  Conduct that is not considered criminal for the  society
at-large may be considered criminal in the military setting.   Whether
or not the Lawrence case results in a change to Article 125 remains to
be seen.

Applicant’s contention that the  preemption  doctrine  prohibited  the
government from charging his misconduct under Article 134  is  without
merit.  The doctrine of preemption prohibits the use of Article 134 to
punish  crimes  specifically  delineated  in  the  punitive  articles.
Applicant was charged with the crime of committing  an  act  with  the
victim that was prejudicial to good order  and  discipline.   The  act
happened to be what has been defined as sodomy.  Article 125 does  not
require the additional element that the conduct be prejudicial to good
order and discipline.  There is case law that states  that  adding  an
element to a punitive article, or removing an element from a  punitive
article, and charging it under Article 134, and thereby converting  an
offense already delineated into an Article 134 offense under the  code
is prohibited by the preemption doctrine.  However, in this case,  the
government did not take  a  sodomy  offense  and  add  an  element  in
aggravation (that it was prejudicial to good order and discipline)  in
order to create another offense.  As can  clearly  be  seen  from  the
reprimand included as punishment for the Article 15, the emphasis  was
that the applicant’s  actions  were  prejudicial  to  good  order  and
discipline in that he engaged in various acts with  the  spouse  of  a
fellow airman and neighbor who was deployed.

The complete evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response to the Article 15, the applicant states that the facts
put   forth   in   the   evaluation   contain   some   falsifications.
Specifically, the applicant states he was not present when  the  other
Air Force member had sexual intercourse with the victim and he did not
know the victim prior to the incident, so he could not have  known  of
her inexperience with alcohol in order to take advantage of her.

The applicant  disagrees  with  the  evaluation  statement  “Based  on
Applicant’s view, the Government  could  not  charge  his  acts  under
Article 125 or 134, and thus Applicant should  not  have  received  an
Article 15.”  Applicant states that he does not contend that he should
not have gotten an Article 15 for the alleged  offense.   However,  he
does contend that there was an error in accordance with the  law  when
his Article 15 was administered.  Applicant states that he feels as if
he has been victimized by the whole issue and process.

Applicant discusses a statement  signed  by  his  Air  Force  Attorney
regarding  written  testimony  he  made  to  the  appellate  authority
regarding a telephone conversation  between  he  and  the  applicant’s
squadron  commander.   The  squadron  commander  acknowledged  to  the
applicant’s counsel that even if the wrong charges were filed  against
the applicant, he would have been found guilty either way.

Applicant’s complete response 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  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case;
however, we agree with the opinion and recommendation of the Air Force
office of primary responsibility and  adopt  their  rationale  as  the
primary basis for our conclusion that the applicant has not  been  the
victim of an error  or  injustice.   Since  there  are  pending  legal
matters regarding Article 125 of the UCMJ, we believe  that  it  would
premature  to  grant  the  applicant’s  request  based  on  the  legal
arguments  he  has  raised.   Additionally,  we   believe   that   the
applicant’s conduct was  definitely  prejudicial  to  good  order  and
discipline and do  not  find  the  actions  of  his  commander  to  be
arbitrary or capricious in charging him with this offense.  We further
note that the decision to accept proceedings under Article 15 was  the
applicant’s and that he could have elected to  have  the  offense  for
which he  was  charged  resolved  by  court-martial,  perhaps  a  more
appropriate forum to consider the legal issues he raises.   Therefore,
in the absence of evidence to the  contrary,  we  find  no  compelling
basis to recommend granting the relief sought in this application.
_________________________________________________________________

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 Docket  Number  BC-2004-
00159 in Executive Session on 10 June 2004, under  the  provisions  of
AFI 36-2603:

      Ms. Brenda L. Romine, Panel Chair
      Ms. Deborah A. Erickson, Member
      Mr. Christopher D. Carey, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 12 Jan 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLSA/JAJM, dated 26 Mar 04.
    Exhibit D.  Letter, SAF/MRBR, dated 2 Apr 04.
    Exhibit E.  Memorandum, Applicant, 16 Apr 04.




                                   BRENDA L. ROMINE
                                   Panel Chair