RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2005-03346
            INDEX CODE:  126.04
            COUNSEL:  NONE

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  5 MAY 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

The punishment imposed upon him under Article 15, Uniform Code  of  Military
Justice (UCMJ), dated 23 June 2003 be set aside.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Evidence at the time of the Article  15  and  evidence  collected  afterward
demonstrates he did not commit the  infraction  in  question,  and  that  he
physically could not have.  His wife falsely accused him of  sexual  assault
two days after he uncovered her marital infidelity.   Her  allegations  were
that he forced her to perform sexual acts, held her hostage for  an  18-hour
period by taking away all telephones and car keys, and extorted  large  sums
of money from her by forcing her to take credit card advances and  demanding
that she sell her car and jewelry.  However,  biological  tests  were  found
negative for DNA on multiple garments which she claimed would be stained.

All criminal charges were initiated  and  dropped  by  the  Commonwealth  of
Virginia.  The state later granted him a full expungement of the  matter  in
February 2004, which according to  state  precedent  and  statute,  actually
required him to  demonstrate  his  innocence  and  do  so  against  a  rigid
standard.  He prevailed during a hearing where all  due  process,  rules  of
evidence, and standards of proof were applied.  He  is  considered  innocent
of the charges and the matter has been completely wiped from his record.

The Article 15, however, was handled in  a  highly  suspicious  and  suspect
manner that he believes  should  be  considered  an  injustice.   The  false
accusations were made in November 2002 and his entire chain of  command  was
immediately notified.  Three senior officers were aware of  the  allegations
and evidence, and made it  clear  that  they  considered  him  innocent.   A
formal investigation was never opened, no Office  of  Special  Investigation
(OSI) file was ever created and  he  was  never  informed  of  any  official
commander-directed investigation.

He requests that his military record be cleared and the  entire  matter  set
aside so he is no longer  subject  to  any  injustice  and  he  is  able  to
practice as a licensed health professional in  the  civilian  world  without
the worry of these false allegations continuing to follow him.

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

_________________________________________________________________

STATEMENT OF FACTS:

On 14 July 1998,  the  applicant  entered  active  duty  in  the  Air  Force
Reserves.

On 15 April 2003, the applicant was notified of his  commander's  intent  to
impose nonjudicial punishment upon him for the following:

     a.  He did, within  the  Commonwealth  of  Virginia,  on  or  about  16
November 2002, on divers occasions,  commit  sodomy  by  force  and  without
consent.

     b.  He did, within  the  Commonwealth  of  Virginia,  on  or  about  16
November 2002, wrongfully communicate a threat.

After consulting with counsel, the applicant waived his right to a trial  by
court-martial, requested a personal  appearance,  and  submitted  a  written
presentation.

He was found guilty by his commander who imposed the  following  punishment:
a forfeiture of $1,900.00 pay per month for two months.

The applicant did not appeal the punishment.

On 29 May 2003, the applicant was notified of the change  of  commander  for
Non-judicial Punishment Proceedings.

On 30 May  2003,  the  applicant  acknowledged  receipt  of  the  change  of
commander and indicated he had consulted with a lawyer, waived his right  to
court-martial proceedings and accepted nonjudicial punishment under  Article
15; he indicated he previously attached a written presentation and  did  not
request a personal appearance.






On 23 June 2003, the applicant was notified of  his  commander’s  intent  to
file a record of the Article 15 in his Officer Selection Record (OSR).

On 8 August 2003, the commander determined the Article 15 punishment,  dated
23 June 2003, would be filed in his Selection  Record  and  Officer  Command
Selection Record.

On 21 August 2003, the applicant was honorably released from active duty  in
the grade of captain under the provisions of AFI  36-3207  -  Completion  of
Required Active Service.  He served five years, one month,  and  eight  days
of total active duty service.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating the applicant then  a  captain  and
his wife had an altercation the evening of 16 November 2002.  The  applicant
had discovered evidence of his wife’s infidelity, which she  admitted.   She
alleged he held her captive overnight, forced her to  perform  oral  sex  on
him multiple times, forced her to write out details of  her  sexual  conduct
with the other man, and threatened to harm that other man  if  she  did  not
cooperate and reimburse him for the money he’d spent  supporting  her  while
she was engaged in an extramarital affair.  The applicant vehemently  denied
his wife’s version of events, argued her credibility  was  nonexistent,  and
pointed to multiple implausibilities/inconsistencies in her statements.

The  applicant  was  initially  arrested  by   the   local   police.    They
relinquished jurisdiction to the Air Force in December 2002.  His  commander
offered nonjudicial punishment under Article 15 of  the  UCMJ  on  15  April
2003 for  sodomy  and  communicating  a  threat.   The  applicant  responded
extensively in writing.  On 23 June 2003, his  commander  found  him  guilty
and imposed a punishment of a reprimand  and  a  forfeiture  of  $1,900  per
month for two months.

The applicant’s commander determined the Article 15  action  was  warranted.
The applicant waived his right  to  be  tried  by  court-martial  and  chose
instead to accept Article  15  proceedings,  placing  the  determination  of
guilt or innocence, as well as, punishment in his  commander’s  hands.   The
applicant provided an extensive written presentation  attacking  his  wife’s
credibility, pointing out the lack of  scientific  evidence  supporting  her
allegations, and noting inconsistencies in her various statements.   Despite
this response, his commander found him guilty.






The applicant argues the expungement of  his  criminal  record  in  Virginia
constitutes a finding he is factually innocent and cites  several  cases  in
support of  that  position.   The  applicant  has  somewhat  overstated  the
significance of the expungement; the cases he  cites  refer  to  an  earlier
version of the statute permitting expungement.  The  statute  the  applicant
fell under permits expungement only upon a showing of “nolle prosequi”  -  a
declination by the  state  to  prosecute.   After  a  petitioner  makes  the
request  for  expungement,  “the  court  shall  conduct  a  hearing  on  the
petition.  If the court finds that  the  continued  existence  and  possible
dissemination of information  relating  to  the  arrest  of  the  petitioner
causes or may cause circumstances which constitute a manifest  injustice  to
the petitioner, it shall enter an order requiring  the  expungement  of  the
police and court records relating to the charge.”  Code of  Virginia,  19.2-
392.2.  Even if the Virginia expungement order were an action tantamount  to
Virginia  declaring  the  applicant  innocent,  such  an  action  would  not
preclude the Air Force, in its separate Article 15 proceeding, from  finding
the applicant guilty.  The systems are different, the rules of evidence  are
different, and the standard of proof is different.  Moreover,  federal  law,
of which the UCMJ  is  a  part,  is  controlling  over  state  law  in  this
instance.

The applicant argues the time lag between his confrontation  with  his  wife
and the Article 15 being offered indicates the bad faith of the  command  in
the process.  It is Air Force policy, stated in Air  Force  Instruction  51-
201, Administration of Military Justice, paragraph 2.5, not to  pursue  even
Article  15  action  when  a  proceeding  is  pending  before  state  court.
Therefore, the earliest the Air Force could have acted  was  after  Virginia
ceded jurisdiction to  the  Air  Force  in  December  2002.   Parts  of  the
applicant’s response to the Article 15 identifies times the  Air  Force  was
continuing to investigate.  For example, three are  notes  of  an  interview
members of the base legal office had with his wife on 19 January 2003 and  a
statement  by  his  mother-in-law  on  27  February   2003.    These   items
demonstrate  that  the  Air  Force  spent  some  of  the  intervening   time
investigating the offenses after Virginia ceded jurisdiction.

The evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 27 January 2006, a copy of the Air Force evaluation was forwarded to  the
applicant for review and response within  30 days.   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 timely filed.

3.    Insufficient relevant evidence has been presented to  demonstrate  the
existence of an error or injustice warranting the  punishment  imposed  upon
him under Article 15, UCMJ, on 23 June 2003 be set aside.   The  applicant’s
contentions are duly noted; however, we find no evidence  that  the  Article
15 action taken against the applicant was  in  error  or  unjust.   In  this
respect, the applicant was offered and accepted nonjudicial  punishment  for
sodomy and communicating a threat.  Therefore, we believe his commander  was
in the best position to weigh  the  evidence  in  the  case  and  judge  the
applicant’s credibility  and  demeanor  throughout  the  proceedings  before
rendering a decision.  There is  no  indication  the  commander  abused  his
discretionary authority when assessing the merits of the  case.   In  regard
to the applicant’s contentions that all criminal charges were initiated  and
dropped by  the  Commonwealth  of  Virginia  are  also  noted;  however,  as
indicated by AFLSA/JAJM, the systems are  different,  and  the  standard  of
proof is different.  Also, the federal law of which the UCMJ is a  part,  is
controlled over state law in this case.  In view of the foregoing, we  agree
with the  opinion  and  recommendation  of  the  Associate  Chief,  Military
Justice Division, and adopt his rationale as the basis  for  our  conclusion
that the applicant has not  been  the  victim  of  an  error  or  injustice.
Therefore,  in  the  absence  of  evidence  to  the  contrary,  we  find  no
compelling basis to recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented  did  not  demonstrate  the
existence of an error or an injustice; the application was denied without  a
personal appearance; and 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-2005-
03551 in Executive Session on 7 March 2006, under the provisions of AFI  36-
2603:

                 Mr. James W. Russell III, Panel Chair
                 Ms. Barbara R. Murray, Member
                 Ms. Kathleen B. O’Sullivan, Member

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 9 September 2004, w/atchs,
                     received on 1 November 2005.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 11 January 2006.
   Exhibit D.  Letter, SAF/MRBR, dated 27 January 2006.




                 JAMES W. RUSSELL III
                 Panel Chair