RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2004-00847
            INDEX CODE:  134.00

      XXXXXXXXXXX      COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED: NO

___________________________________________________________________

APPLICANT REQUESTS THAT:

The Special Court-Martial held on 21-22 Jun 01 be found void and of
no legal merit and/or all detrimental action taken by the  sentence
be expunged from his military records.

___________________________________________________________________

APPLICANT CONTENDS THAT:

The appointed commanders involved in his court-martial did not have
legal jurisdiction or  court-martial  authority.   In  effect,  his
special court-martial was improper and not  applied  in  accordance
with the Uniform Code of Military Justice (UCMJ) and the Rules  for
Court-Martial (RCM).  There were several serious procedural  errors
in the handling of his special court-martial.

In support of his appeal, applicant submitted a personal statement,
with documents from  his  military  personnel  records;  copies  of
Freedom of  Information  Act  (FOIA)  responses  from  the  Defense
Finance and Accounting Service (DFAS), dated 22 Aug  02,  and  11th
Wing, dated 10 Dec 02, and a letter  to  his  member  of  congress,
dated 12 Mar 04.

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

___________________________________________________________________

STATEMENT OF FACTS:

On 2 May 83, the applicant contracted his initial enlistment in the
Regular Air Force, in the grade of airman basic (E-1).   He  served
on continuous active  duty  and  entered  his  last  enlistment  on
13 Oct 98.  His highest grade held was technical sergeant.

On 13 Mar 01, court-martial  charges  were  preferred  against  the
applicant.  He was charged with failure to go, willful disobedience
of orders, and dereliction of duty in  violation  of  Articles  86,
90 and 92, UCMJ, respectively.  By memorandum dated 30 Mar 01,  the
Commander, Fifth Air Force, forwarded the charges preferred against
the  applicant  to  the  18th  Wing  Commander   for   disposition.
Applicant was attached to  the  18th  Wing  for  UCMJ  and  adverse
administrative purposes and was subject to  the  authority  of  the
18th Wing Commander.

On 19 Jun 01, the charges were referred to a special court-martial.
 Applicant waived his right to object to proceeding to trial within
the period of three days after service of the charges  as  required
by the UCMJ, and requested to proceed immediately.  He also  waived
his right to an Article 32 hearing as well  as  his  right  to  the
appointed Article 32 Investigating  Officer  (IO)  sitting  as  his
judge at the bench trial.   He  elected  to  be  represented  by  a
military counsel of his own choosing, and  by  a  civilian  defense
counsel he hired independently.  He also entered  into  a  pretrial
agreement that limited the punishment that  could  be  approved  in
return for his  agreement  to  plead  guilty  to  the  charges  and
specifications.  Pursuant to his pleas, applicant was found  guilty
of all charges and specifications.  He was sentenced  to  reduction
in grade to senior airman (E-4) and confinement for 60 days.

On 30 Jun 03, applicant was honorably released from active duty and
retired effective  1  Jul  03,  in  the  grade  of  senior  airman.
Effective 18 Jun 2013, he will be advanced to the  grade  of  staff
sergeant on the USAF Retired List by reason of completing  a  total
of 30 years active service plus service  on  the  retired  list  on
17 Jun 2013.  He was credited with 20 years and 11 days  of  active
duty service (excludes time lost for confinement  from  22  Jun  01
through 9 Aug 01).

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AIR FORCE EVALUATION:

AFLSA/JAJM  reviewed  this  application  and  recommended   denial,
stating in part, the applicant’s contentions  were  without  merit.
Applicant raised several  issues  in  an  attempt  to  support  his
argument that the court-martial was procedurally infirm.  Of  those
issues,  four  were  pre-trial  questions  involving  the  military
justice process and one in regard to his post-trial confinement  at
a US Navy Brig.   They  gave  a  chronology  of  the  events  which
preceded the applicant’s court-martial.

They state  if  a  case  goes  to  trial,  the  service  member  is
represented by his defense counsel.  He has a  right  to  a  speedy
trial within 120 days of the preferral of charges.  He may  request
to be tried by military judge alone  or  by  a  panel  of  officers
sitting  as  a  jury.   After  consultation  with  both   counsels,
applicant requested trial by a military  judge.   His  request  was
made both verbally and written before the judge after his  civilian
defense counsel  questioned  the  judge.   Moreover,  both  he  and
counsel were aware at the time of  the  election,  that  the  trial
judge had been designated as the Article 32  Investigating  Officer
in the hearing that was never held.

A military judge may only accept a service member’s plea of  guilty
if it is provident under military law.  In order to  be  provident,
the service member must admit every element of the offense to which
he pleads  guilty.   The  military  judge  carefully  explains,  in
detail, each element of the offense to  the  service  member.   The
service member must be convinced of his own guilt and must be  able
to describe to the military  judge,  all  the  facts  necessary  to
establish guilt.  If any potential defense is raised by the service
member’s account of the facts, or by other matters presented to the
military judge, the military judge will explain such defense to the
accused.  The military judge will not accept the  plea  unless  the
accused admits facts that negate the defense.  The  military  judge
will also not accept the guilty plea unless he is convinced of  the
member’s guilt.  The  applicant’s  sworn  rendition  of  the  facts
surrounding the criminal charges did not give rise to a defense  or
bring anything else to the military judge’s attention, which  would
make him reject the guilty  pleas.   To  the  contrary,  his  sworn
rendition of the facts established each and every element  of  each
offense to which he pled guilty.

Following the court-martial, applicant and his  attorney  submitted
numerous documents for the convening authority to consider.   After
reviewing all of the documents, the  convening  authority  approved
the findings and sentence.  Applicant’s case was then  reviewed  by
an independent judge advocate pursuant to  Article  64,  UCMJ.   In
particular this review included conclusions as to whether the court
had jurisdiction over the applicant, the charges and specifications
stated offenses, and the sentence was within the limits  prescribed
as a matter of law.

Additionally, under 10 USC Section 1552(f), which amended the basic
corrections board legislation,  the  AFBCMR’s  ability  to  correct
records  related  to  courts-martial  is  limited.    Specifically,
Section 1552(f) permits the  correction  of  a  record  to  reflect
actions  taken  by  reviewing  authorities  under  the   UCMJ   and
correction of records related to action on the sentence of  courts-
martial for the purpose of clemency.  Apart from these two  limited
exceptions, the AFBCMR is without authority to reverse, set  aside,
or otherwise expunge a court-martial conviction that occurred on or
after 5 May 50 (the effective date of the UCMJ).

A complete copy of the evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

By letter, dated 23 May 04, he reiterated his original  contentions
and submitted several documents in support of his arguments.

After his initial response, applicant provided  several  additional
responses to support his arguments;  the  following  letters,  with
attachments were submitted, with the  dates  listed:   24  May  04,
14 Jun 04, 24 Jun 04, 7 Jul 04, 4 Aug 04, (through  his  member  of
congress), and 10 Aug 04.

Applicant’s complete responses, with attachments, are at Exhibit E.

___________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request an additional review was  requested
to  consider  the  applicant’s  additional  responses.   AFLSA/JAJM
considered the applicant’s additional arguments and concluded  that
based on the facts contained in their 16 Apr 04  memorandum,  their
decision remained unchanged.

A copy of the evaluation is at Exhibit H.

___________________________________________________________________

ADDITIONAL APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

Applicant provided the conclusions  to  the  additional  evaluation
reached by a military law specialist based on  the  guidelines  and
provisions of the UCMJ, Manuals for Court-Martial (MCM), and RCM.

Applicant’s complete response, with attachments, is at Exhibit J.

___________________________________________________________________

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.   The  applicant’s
assertions that the appointed commanders  involved  in  his  court-
martial did not have legal jurisdiction or court-martial authority,
that the court-martial was improper and not in accordance with  the
Uniform Code of Military Justice (UCMJ) and the  Rules  for  Court-
Martial (RCM), and  that  there  were  several  serious  procedural
errors in  the  handling  of  his  court-martial  are  duly  noted.
However, we do not find these assertions,  in  and  of  themselves,
sufficiently persuasive to override the rationale provided  by  the
Associate   Chief,   Military   Justice   Division    (AFLSA/JAJM).
Therefore, we agree with the recommendation of AFLSA/JAJM and adopt
its rationale as the basis for our decision that the applicant  has
failed to sustain his burden of establishing that he has  been  the
victim of either an error  or  an  injustice  warranting  favorable
action on his request.

4.  Furthermore, the Board’s authority to correct  records  related
to courts-martial is limited.  Specifically, actions by this  Board
are limited to corrections to the record to reflect  actions  taken
by the reviewing authorities and action  on  the  sentence  of  the
court-martial for the purpose of clemency.  This Board  is  without
authority to reverse, set  aside  or  otherwise  expunge  a  court-
martial from an individual’s 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-2004-00847 in Executive Session on 17 November 2004,  under  the
provisions of AFI 36-2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Mr. Wallace F. Beard Jr., Member
      Mr. Albert C. Ellett, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 7 Mar 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, HQ AFLSA/JAJM, dated 16 Apr 04.
    Exhibit D.  Letter, SAF/MRBR, dated 30 Apr 04.
    Exhibit E.  Letters, Applicant, dated 23 May 04,
                14 Jun, 24 Jun, 7 Jul, and 4 Aug 04, w/atchs.
    Exhibit F.  Letter, AFBCMR, dated 6 Aug 04.
    Exhibit G.  Letter, Applicant, dated 10 Aug 04, w/atchs.
    Exhibit H.  Letter, AFLSA/JAJM, dated 26 Aug 04.
    Exhibit I.  Letter, AFBCMR, dated 13 Sep 04, w/atch.
    Exhibit J.  Letter, Applicant, dated 27 Sep 04, w/atchs.




                                   KATHY L. BOOCKHOLDT
                                   Panel Chair