RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-02017
            INDEX CODE:  129.04
            COUNSEL:  NONE

      XXXXXXX    HEARING DESIRED:  YES

MANDATORY CASE COMPLETION DATE: 27 DECEMBER 2006

_________________________________________________________________

APPLICANT REQUESTS THAT:

His court-martial conviction be overturned or a new trial ordered, his  rank
of senior master sergeant (E-8) be  restored,  and  back  pay  for  wrongful
conviction; his grade determination for retirement be corrected  to  reflect
senior master sergeant.

_________________________________________________________________

APPLICANT CONTENDS THAT:

The Air Force convicted him of a crime that was in error  and  an  injustice
that  is  substantiated  in  the   attachments   provided.   If   additional
information is required, he  will  get  it.  He  also  requests  a  personal
hearing to the Board if they require him to explain more  or  to  hear  from
him. His request to have his records corrected is lengthy and  requires  the
entire package to be read to make a decision  on  his  case.  He  has  tried
other avenues to correct this error and injustice to him and his record  and
he strongly feels this Board needs to review his case to correct the  damage
this court-martial has done to his life and career.

In support of his  request,  applicant  provided  personal  statements,  his
retirement orders and amendment, copies of his DD Form 214,  EPRs,  DD  Form
411, AF Form 901, letter from Congressional Inquiry  Division,  letter  from
AFPC/DPD, redacted Report of Investigation.

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

_________________________________________________________________

STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force  on  6  December  1982  and  was
progressively promoted to the grade of senior master  sergeant  (SMSgt/E-8),
having assumed that grade effective and with a date of  rank  of  1  October
2000.

On 19-21 August 2003, the applicant was tried by  general  court-martial  at
Randolph AFB, TX. He  was  charged  with  stealing  “Amazon.com  Salute  Our
Troops” gift certificates, of a value of more than  $500,  the  property  of
the United  States  Air  Force  in  violation  of  Article  121,  UCMJ.  The
applicant  pled  not guilty.
As part of the Amazon.com “Salute our Troops” project, Amazon.com  customers
purchased  $20  certificates  for  military  members.  Amazon.com  sent  the
certificates to each service for distribution to military members.  The  Air
Force point of contact for distribution was Lieutenant Colonel Z__, who  was
Chief, Contact Center, HQ Air  Force  Personnel  Center.  In  January  2002,
Lieutenant Colonel Z__ received a box containing almost 5,000  certificates.
In  June  2002,  he  permanently  changed   his   assignment   leaving   the
certificates in his prior office. Lieutenant Colonel Z__ had left  the  unit
prior to the applicant’s arrival at the unit. (See OSI Report Exhibit G)

At some point the colonel’s name was written on the  box  and  the  box  was
moved to a storage room. Prior to the larceny, the applicant and  SMSgt  T__
were in the storage room when the applicant asks SMSgt T__ what was  in  the
box and she said they were gift certificates, which  had  probably  expired.
The  applicant  removed  a  certificate  from  the  box  and  read  off  the
expiration date, which indicated the certificates had not yet  expired.  The
applicant disagrees with SMSgt T__’s testimony about this event.

The applicant made a sworn statement, admitted into evidence at trial,  that
he decided to clean up the Contact Center and the storage  room  because  it
was getting cluttered. He and coworkers took boxes to the dumpster.  At  the
dumpster, the applicant noticed a brown  box  upon  which  was  written  the
colonel’s name. The applicant looked inside and saw four smaller  tan  boxes
and after looking inside one of the smaller  boxes  he  saw  something  that
said $20.00. He put the box aside,  returned  to  the  dumpster  later  that
afternoon,  and  took  the  box  home.  The  box  was   filled   with   gift
certificates. The applicant used over a 1000  of  the  certificates,  hiding
the certificates and the items purchased  with  the  certificates  from  his
wife, a military member. When questioned as to whom he thought  the  colonel
referred, he stated Lieutenant Colonel Z_.

At trial, there was extensive discussion about  abandonment  and  government
ownership of the gift certificates. The military judge determined  the  gift
certificates belonged to the Air Force and were not abandoned.  The  general
ownership of the certificates remained with Amazon until distributed by  the
Air Force to Air Force members. The applicant was not acting  on  behalf  of
the Air Force when he “distributed” the $20,000  worth  of  certificates  to
himself. These findings are supportable by the evidence in the record.

The applicant elected to be tried by military  judge  alone  rather  than  a
panel of officers (and enlisted if he had so  elected).  Following  a  fully
litigated  trial,  the  applicant  was  found  guilty  of  larceny  of   the
certificates. The finding was not that he stole military property  but  only
that  he  stole  property.  The  prosecution  and  the   defense   submitted
appropriate matters for sentencing and the applicant made oral  and  written
unsworn statements. The military judge stated he had rarely, if  ever,  seen
such an outstanding record of service and excellence and in  recognition  of
the applicant’s record the  court  significantly  lessened  the  punishment,
which would otherwise have been warranted by the nature of the  offense.  On
21 August 2003, the applicant was sentenced to confinement for 30 days,  two
months hard labor without confinement, reduction to airman first class,  and
forfeiture of $1,000 pay per month for six months.

The convening authority approved the findings and sentence. On   23  January
2004, the record was reviewed pursuant to Article 69(b),  UCMJ;  relief  was
denied. The applicant submitted a petition  requesting  the  Judge  Advocate
General of the Air Force to exercise his authority under Article  73,  UCMJ,
to grant the applicant a new trial based on newly  discovered  evidence  and
fraud on the court-martial. The Judge Advocate General denied  the  petition
affirming the findings and sentence in the case.

On 13 February 2004, the applicant requested a retirement date of  1  August
2004. If he had not requested retirement, he would have  been  separated  on
his Date of Separation (DOS) of 31 July 2004.  The  31  July  2004  DOS  was
established on 8 April 2002 when he extended his 6-year enlistment,  entered
on 1 August 1997, for 12 months to obtain retainability  for  an  assignment
from Vance Air Force Base OK to Randolph Air  Force  Base  TX  effective  15
July 2002.

Title 10 USC, Section 8964 provides that “each retired  member  of  the  Air
Force who is retired with less than 30 years of active service is  entitled,
when his active service plus service on the retired list  totals  30  years,
to be advanced on the retired list to the highest grade  held  in  which  he
served on active duty satisfactorily, as determined by the Secretary of  the
Air Force (SAF).”

On 11 March 2004, the Secretary of the Air Force Personnel Council  (SAF/PC)
considered the applicant's case and determined that the  applicant  did  not
serve satisfactorily in the grade of senior  master  sergeant  (E-8)  within
the meaning of Section 8964, Title 10,  United  States  Code.  However,  the
Secretary found the applicant did  serve  satisfactorily  in  the  grade  of
master sergeant (E-7) and  directed  the  applicant’s  advancement  to  that
grade on the retired list effective the date of completion of  all  required
service (27 Dec 2012).

 On 31 July 2004, the applicant was retired  from  the  Air  Force  with  an
honorable discharge in the grade  of  airman  first  class.   He  served  21
years, 9 months and 18 days of total active military service.
_______________________________________________________________
AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied  and  states  the  applicant
has identified no error or injustice  related  to  his  prosecution  or  the
sentence. The applicant is  attempting  to  re-litigate  his  trial.  He  is
essentially arguing he should  not  have  been  convicted  on  the  evidence
presented. This case was extensively litigated at  trial.  It  carried  over
three days and amounted to 331 pages of transcript.  The  issue  of  whether
the property was abandoned by the Air Force and/or innocently found  by  the
applicant was thoroughly addressed. The fact the judge resolved  the  matter
against the applicant does not mean the judge erred. Both applicant and  his
defense  counsel  actively   participated   in   the   post-trial   clemency
opportunities, writing letters to the convening authority and  including  43
attachments.

The appropriateness of  the  applicant’s  sentence,  within  the  prescribed
limits, is a matter within the discretion of the court-martial  and  may  be
mitigated by the convening authority or within the course of  the  appellate
review process. The applicant had the assistance of  counsel  in  presenting
extenuating and mitigating matters in their  most  favorable  light  to  the
court and the convening authority.

The maximum punishment authorized for the offense for  which  the  applicant
was convicted was a  dishonorable  discharge,  confinement  of  five  years,
total forfeitures, and reduction to airman basic  (E-1).  The  sentence  was
well within the legal limits and was a fitting, or  even  light,  punishment
for the offender and the offense committed. Clemency  is  not  warranted  in
this case.

AFSLA/JAJM complete evaluation is at Exhibit C.

AFPC/DPPRRP  recommends  denial  and  states  the  applicant  believes   his
enlistment extension on 8 April 2002 constitutes a new  period  of  service,
thereby releasing him from his 6-year  enlistment  on   1  August  1997.  An
extension is just that--an extension of a current enlistment. His  reasoning
is that, because he served satisfactorily from his date of  promotion  on  1
October 2000 to the date of his extension on 8 April 2002  that  constitutes
the six months of satisfactory service needed for  advancement  under  Title
10  USC,  Section  8964.  That  his  commander  had  recommended   him   for
reenlistment and that he had to go through the same procedures to extend  as
to reenlist is of no consequence. He was not relieved  from  his  enlistment
contract (DOS 31 July 2003) when he extended his enlistment on 8 April  2002
for 12 months   (DOS 31 July 2004).

The portion  of  AFI  36-3203  that  SAFPC  used  to  evaluate  whether  the
applicant served satisfactorily is 7.5.1.3. which  states:  “The  Air  Force
Personnel Council announces the SAF decision on cases where evidence  leaves
doubt the member  served  satisfactorily  in  the  higher  grade.”  In  this
applicant’s case, he was on an extension of a  6-year  enlistment,  had  not
been honorably discharged from the enlistment entered on 1  August  1997  so
SAFPC considered whether the applicant  consistently  served  satisfactorily
in the grade of SMSgt.

Whether the applicant had demonstrated unsatisfactory service  for  one  day
as a SMSgt or for  the  entire  time  as  SMSgt  is  held  by  SAFPC  to  be
unsatisfactory service at that grade. Unlike paragraph  7.5.1.2.,  paragraph
7.5.1.3 does not specify whether a member has served satisfactorily for  six
months at a higher grade. SAFPC may look  at  the  entire  time  the  member
served in a  higher  grade  to  make  their  decision.  Consequently,  their
decision was to allow the applicant to be advanced to the grade of  MSgt  on
the retired list when his active service plus his  service  on  the  retired
listed totals 30 years.

AFPC/DPPRRP complete evaluation is at Exhibit D.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the  Air  Force  evaluations  and  stated  his  first
sergeant even stated to him the Air Force received a  black  eye  for  their
mismanagement and he strongly feels he was made  the  escape  goat  to  tell
Amazon.com they  had  convicted  him  for  stealing  gift  certificates.  If
AFLSA/JAJM could provide him the evidence that he  is  questioning  in  this
statement, he will put this matter to rest, but he knows it can not be  done
because there is no evidence the Air Force has to back up their  story.  His
entire package really needs to be  looked  at  to  see  what  he  is  saying
compared to what the prosecution thinks what happen. He is hoping the  Board
will see he is telling the truth and grant him either a  new  trial  or  his
conviction over turned. He is totally ready to  answer  any  questions  that
may seem unclear. His next step after this process is to the national  press
and other congressmen in his state.

Applicant’s complete response is at Exhibit F.

_________________________________________________________________

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.   Applicant’s  contentions  are  duly
noted; however, we agree with the opinions and recommendations  of  the  Air
Force and adopt their rationale as the basis for  our  conclusion  that  the
applicant has not been the victim of an error or injustice. The Board  notes
that while law precludes us from reversing a  court-martial  conviction,  we
are authorized to correct the records to reflect actions taken by  reviewing
officials and to take action on the sentence of a military  court  based  on
clemency.  There is nothing in the available record that would cause  us  to
disturb the actions of the reviewing officials or to  warrant  a  correction
of the applicant's records based  on  clemency.   In  regard  to  his  grade
determination, we note that Section 8964,  Title  10,  United  States  Code,
allows the advancement of enlisted members to the  highest  grade  in  which
they served on active duty satisfactorily as determined by the Secretary  of
the Air Force.  The Secretary of the Air Force has delegated this  authority
to the Secretary of the Air Force Personnel Council  (SAF/PC).   The  SAF/PC
made the determination that the applicant did serve  satisfactorily  in  the
highest grade of master sergeant  and  that  he  be  advanced  on  the  USAF
Retired List by reason of completing a total  of  30  years  active  service
plus service on the Retired List, effective 27  December  2012.   Therefore,
in the absence of evidence to the contrary, we find no compelling  basis  to
recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been  shown
that a personal appearance with or without counsel will  materially  add  to
our understanding of the issue  involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

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-2005-02017
in Executive Session on 16 March 2006, under the provisions of AFI 36-2603:

      Mr. Thomas S. Markiewicz, Chair
      Ms. LeLoy W. Cottrell, Member
      Mr. Frederick R. Beaman III, Member








The following documentary evidence considered:

   Exhibit A.  DD Form 149, dated 20 July 2005, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 22 Sep 05.
   Exhibit D.  Letter, AFPC/DPPRRP, dated 3 Oct 05.
   Exhibit E.  Letter, SAF/MRBR, dated 14 Oct 05.
   Exhibit F.  Applicant’s Response, dated 31 Oct 05.
   Exhibit G.  AFOSI Report, withdrawn, dated 20 Jan 06.





                                   THOMAS S. MARKIEWICZ
                                   Panel Chair