RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER: BC-2007-02720
            INDEX CODE:  110.02
            COUNSEL:  NONE
            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His  bad  conduct  discharge  be  changed  to  a  general  (under  honorable
conditions) discharge.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Although there were African American officers that could have been  selected
for his court-martial, none were; therefore, his  trial  was  not  fair  and
just.

In regards to the timeliness of his application, the applicant  states  some
documents were recently located  and  he  wanted  to  ensure  his  life  was
correct before applying.

In support of his request, applicant provided a  copy  of  his  current  job
offer, a statement in his own  behalf,  authentication  documents  from  his
record  of  trial,  a  promotion  certificate,  character  letters,  college
admission letters, a copy of his court-martial order, a description  of  his
general court-martial panel, and documents from the  Florida  Department  of
Highway Safety and Motor Vehicles.

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

_________________________________________________________________

STATEMENT OF FACTS:

The applicant entered the active duty  Air  Force  on  27  Oct  99  and  was
progressively promoted to the grade of airman first class.

On 19 Feb 03, the applicant received an Article 15,  Record  of  Nonjudicial
Punishment, with a reprimand  for  using  his  Government  Travel  Card  for
personal use.  In addition, he was reduced to  the  grade  of  airman  first
class, ordered forfeiture of $764 per month for  two  months,  and  45  days
extra duty.  However, the forfeiture of pay was suspended until 18  Aug  03.


On 5 Feb 04, he was  convicted  by  a  general  court-martial  comprised  of
officer members.  He  was  charged  with  one  count  of  attempted  larceny
(depositing an $80,000 counterfeit check  into  his  own  account  with  the
intent  to  make  wrongful  withdrawals  there  from),  larceny  (wrongfully
obtaining $2,000 from a  fraudulent  deposit),  and  uttering  falsely  made
checks with the intent  to  defraud  (the  $80,000  check  involved  in  the
attempted larceny and the $2,000 check involved in the  completed  larceny).
He was sentenced to a bad conduct  discharge,  16  months  confinement,  and
reduction to airman basic.

The  convening  authority  waived  $1,193.40  pay  per  month  of  mandatory
forfeitures for six months in favor of the applicant’s wife and children.

On 20 Oct 05, the Air Force Court of Criminal Appeals (AFCCA)  affirmed  the
findings and sentence.  On 12 Apr 06, and  after  completing  the  appellate
review process, the  AFCCA  denied  the  applicant’s  petition  for  further
review.

The applicant was discharged on 19 Jun 06 with a bad conduct discharge.
 _________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the request.   The  applicant’s  contentions
are unsupported and without merit.

The applicant does not  assert  factual  innocence  and  maintains  that  he
accepts full responsibility for his role in the  crimes  he  committed.   He
provides  no  evidentiary  support  for  his  claim   that   the   convening
authority’s  action  amounted  to  a  deliberate,  systematic  and  improper
exclusion of potential court members on the basis  of  race.   He  does  not
articulate any particular prejudice to his trial rights attributable to  the
absence of African-American members.   He  submits  a  number  of  character
references that indicate he is a caring and responsible parent,  worker  and
friend, with a positive  attitude  towards  life,  and  a  strong  drive  to
provide a better future for his  children  through  hard  work  and  further
education.

The applicant’s allegation that he was unfairly prejudiced  by  the  absence
of  African-American  court  members  was  first  raised  on   appeal.    In
addressing that claim, the AFCCA stated that “although  a  military  accused
does not have the right to a court panel composed of a  cross-section  of  a
military community, he does have a right to (court)  members  who  are  fair
and impartial.”

The applicant makes no claim  of  factual  innocence  with  respect  to  his
convictions.  In the sentencing and clemency phases  of  his  court-martial,
he accepted responsibility  for  his  role  in  the  crimes  committed.   He
admitted that he knowingly acted as a front-man for others in  a  scheme  to
defraud.  In furtherance of that scheme, he deposited thousands  of  dollars
in counterfeit checks in bank accounts created by him for that  purpose  and
then wrongfully made or attempted to make withdrawals  from  those  accounts
in  a  misguided  effort  (recognized  only  in  hindsight)  to  better  his
desperate financial situation through fraud.

The applicant  has  supplied  no  evidence  that  the  18  AF/CC  improperly
excluded qualified personnel from the selection process.  Instead  he  makes
a broad assertion that because no member detailed to his  court-martial  was
African-American,  the  convening  authority  improperly  excluded  African-
Americans from consideration as members.  As  a  general  principle,  it  is
proper to assume that a convening authority is aware of  his  duties,  power
and responsibilities, and performs them satisfactorily.   United  States  v.
Townsend, 12 MJ 861,862 (AFCMR 1981).  In the absence  of  any  evidence  to
the contrary, we will not assume that the convening authority in  this  case
improperly excluded qualified personnel, including  African-Americans,  from
the selection process.  The applicant has failed  to  satisfy  this  burden.
US v. Foster, supra, at 3-4.

The applicant’s mere allegation of impropriety in this  regard  is  no  more
persuasive today, in this application for relief to the Board, than  it  was
in 2005 when it was rejected by the courts.  Naked speculation was not  then
and is not now a substitute for evidence.

Clearly, given the overwhelming evidence adduced at trial  (including  video
of the applicant in the  bank  making  a  fraudulent  transaction)  and  the
applicant’s post-trial admission of  guilt,  the  applicant  has  failed  to
demonstrate that the absence of African-American court  members  was  either
improper or resulted in any unfairness in the proceedings.

To characterize the applicant’s conduct as bad is to do no more  than  speak
the hard but necessary truth.  The maintenance of good order and  discipline
requires no less.

The AFLOA/JAJM complete evaluation is at Exhibit C.
_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on  5  Oct
07 for review and comment within 30 days.  As of this date, this office  has
not received a response.

_________________________________________________________________

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.   We  took  notice  of  the  applicant's
complete submission in judging the merits of the  case;  however,  we  agree
with the opinion and recommendation of  the  Air  Force  office  of  primary
responsibility and adopt its 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 in this application.

_________________________________________________________________

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-2007-02720
in Executive Session on 28 November 2007, under the provisions  of  AFI  36-
2603:

      Ms. Charlene M. Bradley, Panel Chair
      Ms. Karen A. Holloman, Member
      Mr. Wallace F. Beard, Jr., Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, w/atchs, dated 22 Aug 07.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Memorandum, AFLOA/JAJM, dated 18 Sep 07.
    Exhibit D.  Letter, SAF/MRBR, dated 5 Oct 07.




                                   CHARLENE M. BRADLEY
                                   Panel Chair