RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2006-02328
            INDEX CODE: 105.01
            COUNSEL:  JOHN N. PAGE III

            HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE: 4 Feb 08

_________________________________________________________________

APPLICANT REQUESTS THAT:

He be reinstated in appellate leave status to complete  his  General  Court-
Martial (GCM) appeal process from the Air Force Court  of  Criminal  Appeals
(AFCCA) to the Court of Appeals for the Armed Forces (CAAF).

_________________________________________________________________

APPLICANT CONTENDS THAT:

His opportunity to continue his appeal  from  the  AFCCA  to  the  CAAF  was
denied due to administrative  errors  attributable  to  appointed  appellate
counsel [AFLOA/JAJA, formerly AFLSA/JAJA] and beyond his control.   He  told
all his lawyers that he wanted  to  exhaust  every  avenue  in  the  appeals
process, including  the  Supreme  Court  if  necessary.   His  file  sat  on
someone’s desk for over 90 days and they executed his discharge without  his
consent.

In support of  his  request,  applicant  provided  a  27 Jun  06  memo  from
AFLOA/JAJA and GCM Order No. 10.  The AFLOA/JAJA memo is  addressed  to  the
AFBCMR on behalf of the applicant and  advises  that  administrative  errors
attributable to their office and beyond the applicant’s control  denied  him
the opportunity to continue his appeal  process.  The  applicant’s  complete
submission, with attachments, is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the  Regular  Air  Force  on  19 Jan  00  and  was
assigned to the 96th Security Forces Squadron at  Eglin  AFB,  FL.   He  was
promoted to the grade of senior airman effective and with a date of rank  of
19 Jan 03, and his performance reports reflect an overall rating  of  4  for
the period ending 18 Sep 01 and 5 for the period ending 18 Sep 02.

On 26 Sep 03, the applicant was tried by GCM for  the  offenses  of  larceny
and housebreaking.  He was a member of an Air Force  Security  Forces  theft
ring.   He  and  his  accomplices  broke  into  three  different  government
buildings and stole military property (gas masks, gloves, a  knife,  several
survival  vests  containing  a  variety  of  survival  equipment,  a   color
television,  a  rucksack,  a  Gortex   jacket,   and   other   survival-type
equipment).  He was also charged with  three  specifications  of  unlawfully
entering Air Force buildings with the intent to  commit  larceny.   Pursuant
to a plea agreement to limit his maximum punishment  to  the  jurisdictional
limits of a special court-martial, the applicant pled guilty to all  charges
and specifications and a military judge sentenced him to confinement for  10
months, reduction to airman basic, and a bad conduct discharge (BCD).

When the applicant’s record of trial arrived  at  the  Air  Force  Appellate
Defense Division, AFLOA/JAJA, an appellate defense counsel was  assigned  to
represent him.

The  General  Court-Martial  Convening   Authority   (GCMCA)   granted   the
applicant’s request for clemency and reduced confinement to eight months.

The AFLOA/JAJA counsel filed an appellate brief in behalf of  the  applicant
with the AFCCA on 22 Oct 04.

While AFLOA/JAJA  was  awaiting  a  decision  from  AFCCA,  the  applicant’s
original appellate counsel separated from the Air Force.   Sometime  between
his counsel separating and AFCCA’s decision, a  new  appellate  counsel  was
assigned.

On 22 Nov 05, AFCCA published its final decision regarding  the  applicant’s
appeal.  The  court  set  aside  one  of  the  housebreaking  specifications
(Specification 3 of Charge II) because it found the applicant’s guilty  plea
with respect to that specification to  be  improvident.   Specifically,  the
court stated that  because  the  applicant  and  his  accomplices  initially
entered one of the buildings to get car parts in connection with his job  by
using a key he had obtained legitimately, he  did  not  enter  the  building
unlawfully.  The appeals  court  set  aside  that  particular  housebreaking
specification and reassessed  his  sentence  to  confinement  to  8  months,
reduction to airman basic, and a BCD.   The  appeals  court  maintained  the
same  sentence  that  the  GCMCA  had  approved  because  the  trial  judge,
foreseeing  a  potential  problem  with  the  applicant’s  guilty  plea   to
Specification 3 of Charge II, specifically stated at trial that he  did  not
consider that specification when he computed his  sentence.   After  setting
aside Specification 3  of  Charge  II  and  reassessing  the  sentence,  the
appeals court affirmed the remaining findings of guilty and the sentence  as
correct in law and fact.

In a letter  dated  23 Nov  05,  AFLSA/JAJM  [now  AFLOA/JAJM]  advised  the
applicant that the AFCCA had modified the findings, as discussed above,  and
these approved  modified  findings  and  the  sentence  as  reassessed  were
correct in law and fact, and no error prejudicial to the substantial  rights
of the applicant occurred.  He was advised he had the right to petition  the
CAAF within 60 days of actually being notified of the  AFCCA’s  decision  or
within 60 days  of  the  postmarked  date  of  this  letter,  whichever  was
earlier.  The AFCCA decision and an information sheet about the  applicant’s
right  to  petition  were  also  attached.   The  letter  was  forwarded  by
certified mail to the last address provided by the applicant  at  Greenville
MI.

In the interim, however, when AFLOA/JAJA received the  AFCCA  decision,  the
case tracking system was  not  updated  to  reflect  the  court’s  decision.
Consequently, the applicant’s case was never  placed  on  a  list  of  cases
awaiting petition to CAAF, and his newly  assigned  counsel  never  filed  a
petition on the applicant’s behalf.  Instead, his case continued to  reflect
that AFLOA/JAJA was still awaiting an AFCCA decision.

The applicant did not petition the CAAF for review of his  case  within  the
statutory time period; as a result, the findings and sentence  in  his  case
became final and conclusive on 2 Feb 06.  On 7 Mar 06, the GCMCA took  final
action in the case and executed the BCD and the  applicant  was  discharged.
The applicant indicated on his copy of GCM Order No.  10,  dated  7 Mar  06,
that he received it on 16 Jun 06 (see Exhibit A).

According to their 27 Jun 06 memo (Exhibit  A),  AFLOA/JAJA  discovered  the
discrepancy on 2 Jun 06, well past the applicant’s deadline to petition  the
CAAF (clients normally have a 60-day window to file a petition  after  AFCCA
issues a decision).  They never sent the applicant a  copy  of  the  court’s
decision or a letter notifying him of his option to petition  the  CAAF  and
the deadline for doing so.   AFLOA/JAJA  provided  a  copy  of  the  AFCCA’s
decision to the applicant from AFLOA/JAJA on 2 Jun 06.

GCM Order No. 70, dated 12 Dec 06, ordered the BCD executed.  On 10 Jan  07,
after 6 years, 7 months and 29 days of active  service,  the  applicant  was
discharged  in  the   grade   of   airman   basic   with   a   bad   conduct
characterization.  The DD Form 214 reflects lost time for the period  26 Sep
03-18 Jan 04, and a non-pay status for the period 19 Jan 04-10 Jan 07.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM  (formerly  AFLSA/JAJM)  recommends  denial.   They  advise  that
appellants do not have a right to automatic review of their  case  by  CAAF;
unlike they do with AFCCA if their sentence includes  a  punitive  discharge
or confinement for more than 12 months.   Appellants  are  not  barred  from
petitioning the court themselves if their appellate  defense  authority  has
not filed a petition for review.  The applicant should not  prevail  because
he has suffered neither material error nor  injustice.   Although  appellate
defense counsel failed to notify the applicant in a timely  fashion  of  his
right to petition the CAAF, AFLOA/JAJM provided him the information  on  the
day after the AFCCA published its decision.  As is  standard  procedure,  by
written letter dated 23 Nov  05,  AFLOA/JAJM  notified  the  applicant  that
AFCCA had published its final decision on  the  previous  day.   The  letter
included a copy of the AFCCA/s published decision, as  well  as  information
regarding his right to petition the CAAF for review within 60  days  of  the
postmarked date of the letter.  This letter was  sent  by  certified  return
receipt mail to the same address the applicant had provided  the  government
and his appellate defense counsel on the Air Force Form 304 as a good  valid
address  for  all  post-trial  correspondence.   The  Board  can  infer  the
applicant received AFLOA/JAJM’s letter with sufficient time to  contact  his
appellate defense counsel and exercise his right to petition  the  CAAF  for
review of his case.   AFLOA/JAJM  received  a  delivery  receipt  indicating
successful delivery of the letter on 30 Nov 05; the  letter  was  mailed  to
the address the applicant provided  (Greenville  MI),  which  was  the  same
address to which a copy of the final  action  executing  the  discharge  was
mailed  on  7 Mar  06;  and  the   applicant   acknowledged   it   was   his
responsibility to provide appellate defense counsel with any changes to  the
address he provided on the AF Form 304.  AFLOA/JAJM’s records  indicate  the
applicant’s mailing address reflecting the Niceville  FL  address  was  just
updated with the Appellate Defense Division on  or  about  14 Jun  06.   The
applicant was notified  of  his  rights  and  time  limitations  by  written
correspondence on the very next day after the AFCCA published its  decision.
 AFLOA/JAJA’s error in no  way  prejudiced  the  applicant  because  he  had
already received  the  same  information  through  AFLSA/JAJM  in  a  timely
fashion.  The applicant had  the  information  and  failed  to  take  timely
action, or in fact any action.

The complete AFLOA/JAJM evaluation, with attachments, is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant contends the “Nov 30 2005” stamp on the PS Form  3800  is  the
US Postal Service delivery receipt  and  reflects  the  date  the  item  was
mailed or postmarked, not received.  It is  not  clear  when  or  where  the
decision was mailed.  The Greenville MI address was not  valid  in  Nov  05.
He provided this address  to  his  appellate  defense  counsel  because  his
parents lived there and he was confined.  His father began to  receive  mail
at  the  MI  address  shortly  after  his  [the  applicant’s]  release  from
confinement in 2004. His father provided the appellate defense counsel  with
the applicant’s address and phone number and repeated this process  numerous
times when mail regarding the court-martial arrived  at  the  Greenville  MI
address.  In Jul 05,  his  parents  moved  from  the  MI  address.  He  also
provided his  address  changes  numerous  times  to  his  appellate  defense
counsel and the paralegals in the office.  He changed  his  address  at  the
military personnel flight (MPF), Legal, and Tri-care offices at  Eglin  AFB.
None of these actions was successful until recently.  The final  action  was
provided to him on 16 Jun 06 by the Legal Office at Eglin AFB, not by  mail.
 He was then escorted off the base.  He never received notification  of  the
AFCCA decision until AFLOA/JAJA mailed it to him on 6 Jun 06, well past  the
60-day window to petition the CAAF.

The applicant’s complete response, with attachments, 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.  The Board took notice of  the  applicant's
complete submission in judging the merits of the case;  however,  the  Board
majority agrees with the Air Force office  of  primary  responsibility  that
the applicant has failed to sustain his burden of proof  that  he  has  been
the victim of either an error or  injustice  warranting  corrective  action.
In this respect, on 22 Nov 05, the AFCCA rendered its final decision on  the
applicant's appeal.  Pursuant to the AFCCA decision, the applicant had a 60-
day time limit in which to  appeal  the  AFCCA  decision  to  the  CAAF,  if
desired.  Applicant contends that because appellate counsel did  notify  him
of the AFCCA decision within  the  60-day  time  limit,  he  was  denied  an
opportunity to appeal the decision to the CAAF.  However, on 23 Nov  05  the
Air  Force  Legal  Operations  (AFLOA/JAJM)   concurrently   forwarded   the
applicant a copy of the AFCCA decision along with information regarding  his
right to petition the CAAF for review within 60 days of the postmarked  date
of the letter.  In view of the above, it is  the  Board  majority's  opinion
that while the applicant may not have received timely  notification  of  the
AFCCA decision from his appellate counsel, it appears he  was  appropriately
notified of the decision  and  provided  guidance  for  petitioning  further
appeals.  The Board majority believes he had  ample  opportunity  to  appeal
the decision to the CAAF, yet failed to do so.  Accordingly, in the  absence
of substantive evidence to the contrary, the Board majority finds  no  basis
upon which to recommend granting the relief sought in this application.

_________________________________________________________________

RECOMMENDATION OF THE BOARD:

A majority of the panel finds insufficient evidence of  error  or  injustice
and recommends the application be denied.

_________________________________________________________________

The following members of the Board considered  Docket  Number  BC-2006-02328
in Executive Session on 8 Feb 07, under the provisions of AFI 36-2603:

      Ms. Kathy L. Boockholdt, Panel Chair
      Mr. Charlie E. Williams, Jr., Member
      Ms. Teri G. Spoutz, Member

By a majority vote, the Board voted  to  deny  the  request.   Mr.  Williams
voted to correct the record and did not desire to submit a minority  report.
 The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated, 2 Jul 06, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 21 Sep 06, w/atchs.
    Exhibit D.  Letter, SAF/MRBR, dated 13 Oct 06.
    Exhibit E.  Letter, Applicant, dated 26 Oct 06, w/atchs.




                                             KATHY L. BOOCKHOLDT
                                             Panel Chair




MEMORANDUM FOR THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR
                                        CORRECTION OF MILITARY
RECORDS (AFBCMR)

SUBJECT:  AFBCMR Application of

      I have carefully reviewed the evidence of record and the
recommendation of the Board members.  A majority found that the applicant
had not provided sufficient evidence of error or injustice and recommended
the case be denied.  I concur with that finding and their conclusion that
relief is not warranted.  Accordingly, I accept their recommendation that
the application be denied.

      Please advise the applicant accordingly.




                                        JOE G. LINEBERGER
                                        Director
                                        Air Force Review Boards
Agency