RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-01170
            INDEX CODE:  134.02
            COUNSEL:  NONE

            HEARING DESIRED:  YES

MANDATORY COMPLETION DATE:  20 OCTOBER 2007

_________________________________________________________________

APPLICANT REQUESTS THAT:

His court-martial conviction be removed from his records.

In his rebuttal, the applicant also requests pay and allowances he never
received during his confinement (Exhibit E).

_________________________________________________________________

APPLICANT CONTENDS THAT:

He did not receive a fair  and  unbiased  trial.   His  attorneys  were  not
afforded access to eyewitnesses in a timely manner and a very  biased  judge
greatly hindered the ability of his attorneys to  defend  him  and  tampered
with the record of trial.

Applicant states he did not commit the  offenses  he  was  convicted  of  by
court-martial.  The Office of  Special  Investigation  conducted  a  biased,
unprofessional investigation.  He has been advanced to the  grade  of  SMSgt
on the retired list and has an  honorable  discharge,  but  is  required  to
register as a sex offender every year  as  a  result  of  his  court-martial
conviction.

In support of the application, the applicant submits his personal  statement
and excerpts from his court-martial case file.

The applicant's complete submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 6 August 1974, the applicant enlisted in the Regular  Air  Force.   Prior
to the events under review, he was progressively promoted to  the  grade  of
Chief Master Sergeant (E-9) effective and with a date  of  rank  of  1  July
1998.

The following  is  a  resume  of  his  last  ten  (10)  Performance  Reports
commencing with the report closing 26 March 1991.

            PERIOD ENDING    PROMOTION RECOMMENDATION

      26 Mar 91        5
      26 Mar 92        5
      26 Mar 93        5
      26 Mar 94        5
      26 Mar 95        5
      26 Mar 96        5
      26 Mar 97        5
      26 Mar 98        5
      26 Mar 99        5
      26 Mar 00        5


According to the Air Force office of primary responsibility,  the  applicant
was  charged  with  two  specifications  under   Article   93,   UCMJ,   for
maltreatment of subordinates; one specification under Art 120 for rape;  one
specification under Art 134 for indecent assault; two  specifications  under
Art 92 for dereliction of duty; and one  specification  under  Art  107  for
making a false statement.  The charges stemmed  from  three  incidents  with
female subordinates in 1999 that occurred while on temporary duty  in  Saudi
Arabia.

At a General Court-Martial on 5 May 2000, he pled not guilty to all  charges
but was found guilty of  all  specifications  except  one  specification  of
maltreatment. He was sentenced to four years confinement  and  reduction  in
rank to the grade of E-4.

He retired in the grade of senior airman effective 30  June  2002.   He  had
served 26 years, 5 months and 2 days of active duty  service  to  include  6
years, 4 months and 9 days of Foreign Service.

On 29 March 2002, the Secretary of the Air Force  found  the  applicant  did
not serve satisfactorily in the higher grade of Chief Master Sergeant  (E-9)
within the meaning of Section 8964, Title 10, United States  Code;  however,
the Secretary did find he served  satisfactorily  in  the  grade  of  Senior
Master Sergeant (E-8) and directed his advancement  to  that  grade  on  the
retired list effective the date of completion of all required services.   He
was subsequently advanced to the grade of E-8 on 29 January 2006.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM opines the applicant’s  contentions  are
without merit.  Under 10 USC 1552 (f), which amended the  basic  corrections
board legislation, the AFBCMR’s ability to correct records related to court-
martial is limited.  Specifically, 1552 (f)(1) permits the correction  of  a
record to reflect actions taken by reviewing  authorities  under  the  UCMJ.
Additionally, 1552(f)(2)  permits  the  correction  of  records  related  to
action on the sentence of court-martial for the purpose of clemency.   Apart
from these two limited exceptions, however, the effect of  1552(f)  is  that
the AFBCMR is without authority to reverse, set aside, or otherwise  expunge
a court-martial conviction that  occurred  on  or  after  5  May  1950  (the
effective date of the UCMJ).

JAJM notes the applicant is not contending that any  specific  actions  have
been taken by reviewing authorities that require correction of  his  record.
Thus, any decision regarding his sentence  must  be  done  as  a  matter  of
clemency.  Since the confinement has  been  served  and  the  applicant  has
retired and been advanced in  rank  to  senior  master  sergeant,  the  only
actions possible  would  concern  changes  in  the  sentence  regarding  the
original reduction in rank.  The applicant, however,  sets  forth  no  basis
for such elements other than arguments that have already  been  rejected  by
all reviewing authorities as meritless.

JAJM opines rape and indecent assault are serious crimes.   The  crimes  are
magnified when the perpetrator wears the rank of  a  senior  supervisor  and
the victim is a newly-arrived subordinate in  his  charge.   In  this  case,
there is no evidence of any material  impropriety  in  the  conduct  of  the
investigation or court-martial giving rise to the sentence.

The JAJM’s complete evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In his response dated 14 July 2006,  the  applicant  states  the  Air  Force
office of primary  responsibility  missed  his  point.   He  reiterates  his
earlier contentions.  He states if he could have brought  eye  witnesses  to
trial, if the OSI had conducted a fair and  open  investigation;  the  tests
and witnesses would have proven his innocence.

He refutes JAJM’s claim that his family continued receiving  CMSgt  pay  and
allowances until 29 Dec 2000, and SrA pay and allowances for  an  additional
6 months per the orders of the convening authority.  He explains his  family
never got the ordered pay and allowances from the General  who  granted  his
waiver because the Defense Finance  and  Accounting  Systems  (DFAS)  office
stated he was not on active duty, his current  enlistment  had  run  out  on
27 July 2000, and he was in confinement  status;  therefore,  he  could  not
receive pay and allowances.  This would have been true if he had received  a
discharge by the court-martial, or  convening  authority,  but  he  did  not
receive a discharge as part of his  sentence  as  proven  by  the  extension
notice from the military personnel flight (MPF).  While in  confinement,  he
was taken to the MPF to extend his enlistment.  His new extension  date  was
1 July 2002, even though he was sentenced by the jury to  four  years  on  5
May 2000.  He had to be involuntarily extended on active duty to  serve  his
sentence in confinement.  A few days later he was again escorted to the  MPF
where he received another  involuntary  extension  until  3  December  2006.
This was his  separation  date  until  retirement.   His  rank  of  SrA  was
acknowledged during his confinement and he started  receiving  SrA  pay  and
allowances immediately after his release.   Additionally,  he  received  TDY
allowances after his return trip to Nellis AFB.

He requests all money owed  his  family  be  paid  them  per  the  convening
authority order.  His wife and family were denied these funds  wrongly  even
after the convening  authority  exercised  his  approval  for  the  pay  and
allowances for his family twice.   He  points  out  part  of  the  convening
authority order for his confinement and rank  reduction  were  carried  out.
He asks, “Why the pay and allowances part of the order wasn’t carried  out?”


He is not a legal expert or advocate; he’s been wronged.  He wants to  clear
his record, get the truth out, be honorable, and asks for help and  clemency
(Exhibit E).

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

The SAF/MRB Legal Advisor deferred the applicant’s pay issue to  DFAS.   The
Legal Advisor notes Article 58 of the UCMJ requires forfeiture  of  all  pay
and allowances during confinement (except deferred confinement)  imposed  by
general courts-martial.  That same article also provides that, in  the  case
of a member with dependents, the convening  authority  can  waive  mandatory
forfeitures, and direct the money be paid to dependents for a period not  to
exceed six months.  In the applicant’s case, the  action  of  the  convening
authority waived the mandatory forfeitures for a maximum of six  months,  or
the end of confinement, or the end of enlistment whichever came first.

The complete Legal Advisor evaluation, with attachments, is at Exhibit F.

DFAS states the applicant was originally sentenced to reduction to  Sergeant
(E4) and four years confinement effective 29 Dec 00.  The adjudged date  was
5 May 00.  The applicant was in confinement from 5 May  00  through  28  Dec
01.  This sentence included an automatic total forfeiture effective  19  May
00.

The applicant’s request for deferment of automatic total forfeiture  of  pay
and allowances was approved on 20 Jul 00 and a new effective date of 29  Dec
00 was established.  He received credit for pay and allowances at the  Chief
Master Sergeant (E9) rate from 1 Jan through 27 Jul 00.  His  Expiration  of
Term of Service (ETS) was 27 Jul 00.  Effective  28  Jul  00,  all  pay  and
allowances were stopped.  He was brought back on a full duty  status  on  29
Oct 01 and paid as a Sergeant (E4) rate through his date  of  retirement  on
30 Jun 02.

DFAS  notes  the  Department  of  Defense  Financial  Management  Regulation
(DODFMR) states that when  an  enlistment  expires  while  a  member  is  in
confinement, no pay and allowances can be accrued  unless  the  sentence  is
completely overturned or set aside, or unless the member is brought back  on
a full duty status.

The complete DFAS evaluation, with attachments is at Exhibit G.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATIONS:

In his response dated 10 Apr 07, the applicant reiterates the  circumstances
regarding his extension of his enlistment and pay and allowances during  his
confinement (Exhibit H).

_________________________________________________________________

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.  Insufficient relevant evidence has been  presented  to  demonstrate  the
existence of probable error or injustice.  As noted by  AFLOA/JAJM,  actions
by this Board related to courts-martial are limited to  corrections  on  the
sentence for the purpose of clemency or to correct  the  record  to  reflect
actions taken by reviewing authorities under the Uniform  Code  of  Military
Justice.   However,  in  our  view  the  applicant  has  failed  to  present
sufficient evidence that would  warrant  this  exercise  of  our  authority.
Therefore, we agree with AFLOA/JAJM and adopt their rationale as  the  basis
for our conclusion that the applicant has not been the victim  of  an  error
or injustice regarding his court-martial.  In reference to  the  applicant’s
claim that his family did not receive  pay  and  allowances  authorized  him
while serving time in confinement, we note that the Defense  Accounting  and
Finance Service asserts that the applicant was paid all pay  and  allowances
to which entitled and, in fact, had a debt  when  he  retired.   We  further
note that it is not within the purview of this Board to direct  any  payment
to the applicant and that any payment would have to be  as  a  result  of  a
valid correction to his record that would  result  in  an  entitlement.   In
that regard, we do not find a any error warranting correction by  the  Board
that would provide the applicant the relief he is  seeking.   Based  on  the
above,  we  find  no  evidence  of  error  or  injustice;   therefore,   the
applicant’s request is not favorably considered.

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 issues involved.   Therefore,  the  request  for  a
hearing is not favorably considered.

_________________________________________________________________

The following members of the Board considered this application in  Executive
Session on 15 May 07, under the provisions of AFI 36-2603:

                   Mr. Michael V. Barbino, Panel Chair
                   Mr. John B. Hennessey, Member
                   Mr. Don H. Kendrick., Member

The following documentary evidence was considered in AFBCMR Docket Number
BC-2006-01170:

      Exhibit A.  DD Form 149, dated 29 Mar 07, w/atchs.
      Exhibit B.  Applicant’s Master Personnel Records.
      Exhibit C.  Letter, AFOLA/JAJM, dated 31 May 06.
      Exhibit D.  Letter, SAF/MRBR, dated 16 Jun 06.
      Exhibit E.  Letter, Applicant, dated 14 Jul 06 w/atchs.
      Exhbiit F.  Letter, SAF/MRB (Legal Advisor), dated 13 Dec 06
w/atchs.
      Exhibit G.  Letter, DFAS-DE, undated, w/atchs.
      Exhibit H.  Letter, Applicant, dated 10 Apr 07.




      MICHAEL V. BARBINO
      Panel Chair