RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-02742 

 COUNSEL: 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. As a matter of clemency, the Board correct his military 
record to reflect a sentence of no punishment, remove the DD 
Form 214, Certificate of Release or Discharge from Active Duty, 
and he be reinstated in the Air Force in the grade of E-4. 

 

2. His bad conduct discharge (BCD) be upgraded to honorable. 

 

3. In the alternative, his DD Form 214, be corrected to reflect 
the following: 

 

 a. Block 4a, Grade, Rate or Rank to read “SrA”. 

 b. Block 4b, Pay Grade to read “E-4”. 

 c. Block 12b, Separation Date This Period to reflect a date 
of separation (DOS) of “October 2008”, his discharge date. 

 d. Block 12c, Net Active Service This Period to reflect 
“8 years, zero (0) months and zero (0) days”. 

 e. Block 12h, Effective Date of Pay Grade to reflect 
“November 2002”. 

 f. Block 18, Remarks to reflect “no remarks”. 

 g. Block 24, Character of Service to read “honorable”. 

 h. Block 26, Separation Code to reflect a code consistent 
with his “expired term of service (ETS)”. 

 i. Block 27, Reentry Code to reflect “1”. 

 j. Block 28, Narrative Reason for Separation to read “ETS”. 

 k. Block 29, Dates of Time Lost during this Period to reflect 
“zero (0)”. 

 

4. On 28 July 2011, the applicant through his attorney amended 
his request to include the following changes: 

 

 c. Block 12b, Separation Date this Period to reflect a date 

 of separation (DOS) of “11 July 2006”, his expiration 

 term of service (ETS). 

 

 d. Block 12c, Net Active Service This Period to reflect 

 “6 years, zero (0) months and zero (0) days”. 

 

 e. Block 12h, Effective Date of Pay Grade to reflect 

 28 December 2002, the date he was advanced to E-4. 

 

_________________________________________________________________ 

 

 


APPLICANT CONTENDS THAT: 

 

His court-martial conviction is invalid in light of the Court of 
Appeals for the Armed Forces (CAAF) decision in United States v. 
SrA Jones, 68 MJ 465 (2010). In Jones, the court ruled that 
lesser-included offenses are valid only if they meet a strict 
elements test: the lesser-included offense must have its 
elements in common with the greater offense. Under this ruling, 
his court-martial conviction for indecent acts is invalid 
because it does not have all its elements in common with rape. 

 

The Jones ruling must be applied retroactively to correct his 
record and erase his sentence, or at the very least remove any 
of its administrative consequences. He is an “unfortunate 
victim of timing” because the law changed two years after his 
appeal in a manner which would have eliminated his conviction 
altogether. 

 

The 652-day delay in his appeal from his sentence to the Air 
Force Court of Criminal Appeals (AFCCA) decision resulted in him 
suffering numerous financial and social hardships as a result of 
him having to register as a sex offender, including losing his 
apartment and employment. 

 

In support of his request, the applicant provides a five page 
legal brief with attachments and a personal declaration. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 12 July 2000, the applicant enlisted in the Regular Air 
Force. 

 

On 13-16 June 2005, the applicant was tried by a general court-
martial. He was accused of three specifications of rape of 
three different women in violation of Article 120, of the 
Uniform Code of Military Justice (UCMJ). One specification was 
dismissed after arraignment and the applicant was found not 
guilty of another. For the other specification, the applicant 
was found not guilty of rape but guilty of the lesser-included 
offense of indecent assault. He was sentenced to a BCD, 
confinement for one year and reduction to the grade of airman 
basic. 

 

On 17 October 2005, the convening authority approved the 
findings and sentence as adjudged, except the applicant’s 
confinement was reduced to a period of five months. 

 

On 30 March 2007, the AFCCA found the panel had been improperly 
instructed that indecent assault was a lesser-included offense 


of rape, but affirmed the applicant’s conviction and sentence 
for indecent acts instead. On 15 February 2008, the CAAF denied 
the applicant’s request to review his case, making the findings 
and sentence in his case final and conclusive under the UCMJ. 

 

On 9 June 2008, the applicant’s BCD was ordered to be executed 
and the applicant was discharged with a BCD on 1 October 2008. 

 

On 23 March 2010, a supplementary general court-martial order 
was issued properly reflecting the modification in the 
applicant’s conviction, thereby relieving him of the requirement 
to register as a sex offender. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigations (FBI), Clarksburg, WV, provided a copy of an 
Investigative Report. 

 

On 6 June 2011, a copy of the Investigative Report and a request 
for post-service information were forwarded to the applicant for 
response within 30 days. As of this date, no response has been 
received by this office (Exhibit C). 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial of the applicant’s request to 
upgrade his discharge to honorable. JAJM states clemency may be 
granted under 10 U.S.C. 1552 (f) (2), and while the applicant 
does provide some arguments for clemency, it is ultimately not 
warranted in this case. The applicant has identified an error 
related to the instructions given the panel at his trial 
concerning the lesser-included offense of rape, which was 
addressed on appeal by AFCCA. This error was also pointed out 
to the convening authority by the applicant’s military defense 
counsel during clemency, and the convening authority 
subsequently reduced the applicant’s confinement from one year 
to five months. 

 

The applicant’s argument that he is an “unfortunate victim of 
timing” and that under Jones, he should have no conviction or 
sentence is unsound. The Jones case does not act retroactively 
and nothing in the language of that decision suggest the court 
intended for it to overturn the verdict in the countless cases 
where the military member was convicted of a lesser-included 
offense. The applicant’s conviction for indecent acts was 
validly based on the current law at the time. Furthermore, the 
applicant is not a victim of timing or bad luck. The 
applicant’s position rests on an assumption, which he makes 
entirely in his favor to the exclusion of the corresponding one 
that voids his position. He assumes that if he were tried 
today, he would not be convicted again of indecent acts because 
he assumes it would not have been charged. 

 


However, after Jones, the government must now charge cases 
differently to include traditional lesser-included offenses as 
separate charges. If the applicant were going to trial post-Jones, he would have faced additional charges of indecent acts 
to cover all relevant theories of criminality for this same 
conduct underlying the rape offenses. The Jones decision does 
not in any way exonerate the applicant, but probably places him 
exactly where he is today: with a conviction for indecent acts. 
A BCD was and continues to be part of a proper sentence and 
properly characterizes his service. 

 

The decision of whether to grant relief for the 652-day delay in 
his appeal is a matter best left to AFCCA, who is in the best 
position to evaluate what is an unreasonable or prejudicial 
delay in the applicant’s case. AFCCA declined any additional 
sentence relief, and in light of the convening authority’s 
decision to reduce his confinement, no further clemency is 
justified by this case. 

 

Additionally, clemency in this case would be unfair to those 
individuals who honorably served their country while in uniform. 
Congress’ intent in setting up the Veteran’s Benefits program 
was to express thanks for veterans’ personal sacrifices, 
separations from family, facing hostile enemy action and 
suffering financial hardships. All rights of a veteran under 
the laws administered by the Secretary of Veterans Affairs are 
barred where the veteran was discharged or dismissed by reason 
of the sentence of a general court-martial. This makes sense if 
the benefit program is to have any real value. It would be 
offensive to all those who served honorably to extend the same 
benefits to someone who committed a crime, such as the applicant 
while on active duty. 

 

The complete JAJM evaluation is at Exhibit D. 

 

HQ AFPC/DPSOS recommends denial of his request to change his 
character of service. DPSOS states based on the documentation 
on file in the applicant’s master personnel records, the 
discharge was consistent with the procedural and substantive 
requirements of the discharge instruction and was within the 
discretion of the discharge authority. Furthermore, the 
applicant did not submit any evidence or identify any errors or 
injustices in the discharge processing. 

 

The complete DPSOS evaluation is at Exhibit E. 

 

DPSOE recommends denial of his request to change his grade and 
defers to the recommendation of JAJM for applicant’s clemency 
request. 

 

The complete DPSOE evaluation is at Exhibit F. 

 

HQ AFPC/DPSOA recommends denial of his request to change his RE 
code. DPSOA states the applicant’s RE code of 2L, which denotes 


“Civil court charges pending for an offense for which the Manual 
of Court Martial (MCM) authorizes confinement for the same or 
most closely related offense, or court-martial charges have been 
preferred, or court-martial action is under appellate review” 
should have been changed to 2B “Separated with a general or 
under-other-than-honorable-conditions (UOTHC) discharge” when 
his BCD was executed. 

 

The complete DPSOA evaluation, with attachment, is at Exhibit G. 

 

HQ AFPC/DPSOTED reviewed the applicant’s record and concluded 
his lost time should be charged based on his five month 
confinement. 

 

The complete DPSOTED evaluation is at Exhibit H. 

 

HQ AFPC/DPSOY recommends denial of the applicant’s request to 
change Blocks 12b, 12c and 18 on his DD Form 214. DPSOY states 
all processes for creation of the DD Form 214 were followed. 
Blocks 12b-12c are correctly reflected with the applicant’s 
affirmed case dated 9 June 2008, General Court-Martial Order 
(GCMO) Number 5 issued by AFMC with his lost time in 
confinement. Block 18 is correctly reflected per his “Required 
Excess Leave” memo dated 17 October 2005, issued by AAC/JA and 
signed by the applicant. 

 

The applicant’s excess leave began 19 October 2005 to 1 October 
2008. The DD Form 214 was consistent with the procedural and 
substantive requirements of the instructions. 

 

The complete DPSOY evaluation is at Exhibit I. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS: 

 

The applicant through his attorney responded to the advisory 
opinions. Counsel notes the Air Force argues the applicant 
“assumes that if he were tried today, he would not be convicted 
again of indecent acts because he assumes it would not have been 
charged.” His argument does not rest upon how the Air Force 
chooses to charge people today, but rather, if his case as it 
existed at the AFCCA came before that court today, the court 
would be required to set aside his conviction and there would be 
no punishment flowing from that conviction. 

 

Never argued that Jones “acts retroactively” or that the court 
intended for it to overturn the verdict in the countless cases 
where the military member was convicted of a lesser-included 
offense.” Although the government attempts to recast the 
applicant’s argument, his position was and remains that if his 
case were decided by the AFCCA post-Jones, his conviction for 
the indecent acts would have been set aside. And since it was 


the only charge remaining on the charge sheet, there would have 
been no punishment. 

 

Finally, the Air Force argues clemency in this case would be 
unfair to those individuals who honorably served their country 
while in uniform. This argument, of course, ignores Congress’ 
intent in providing the Board with the authority to grant 
clemency in the first instance. If Congress did not believe 
that some military members convicted at court-martial were 
deserving of clemency from this Board, and that a consequence of 
clemency might be an entitlement to veterans’ benefits that the 
member otherwise would not have had, it would not have given the 
Board the power to take action on the sentence of a court-
martial for purposes of clemency. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit L. 

 

_________________________________________________________________ 

 

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. We note 
that this Board is without authority to reverse, set aside, or 
otherwise expunge a court-martial conviction. Rather, in 
accordance with Title 10, United States Code, Section 1552(f), 
actions by this Board are limited to corrections to the record 
to reflect actions taken by the reviewing officials and action 
on the sentence of the court-martial for the purpose of 
clemency. Counsel believes the applicant’s case warrants 
consideration on the basis of clemency due to the applicant 
having to register as a sex-offender for 22 months resulting in 
a hardship. He also states if the case were decided by the 
AFCCA post-Jones, his conviction for the indecent acts would 
have been set aside and there would have been no punishment at 
all. After careful consideration of the available evidence we 
do not find these arguments sufficiently persuasive to disturb 
the actions of the reviewing officials in this case or to 
override the rationale provided by the Air Force offices of 
primary responsibilities (OPRs). In this respect, we note the 
applicant’s discharge was based on his trial and conviction by a 
general court-martial and during clemency consideration the 
convening authority actually reduced his sentence from one year 
to five months. Moreover, we do not believe a sufficiently 
lengthy period of time has elapsed since the applicant's 
discharge to warrant further clemency at this time. Therefore, 
we agree with the opinions and recommendations of the Air Force 
OPRs and adopt the rationale expressed as the basis for our 


conclusion the applicant has not been the victim of an error or 
injustice. We note that DPSOY will publish and provide the 
applicant with a corrected copy of his DD Form 214 to reflect an 
RE code of “2B.” In the absence of evidence to the contrary, we 
find no basis to recommend granting any relief beyond that 
granted administratively. 

 

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(s) 
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 AFBCMR Docket 
Number BC-2010-02742 in Executive Session on 11 Aug 11, under 
the provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2010-02742 was considered: 

 

 

 Exhibit A. DD Form 149, dated 28 July 2010, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. FBI Report, dated 17 May 2011. 

 Exhibit D. AFLOA/JAJM, Letter, dated 14 October 2010. 

 Exhibit E. AFPC/DPSOS, Letter, dated 15 February 2011. 

 Exhibit F. AFPC/DPSOE, Letter, dated 28 March 2011. 

 Exhibit G. AFPC/DPSOA, Letter, dated 9 March 2011, w/atch. 

 Exhibit H. AFPC/DPSOTED, Letter, dated 4 April 2011. 

 Exhibit I. AFPC/DPSOY, Letter, dated 31 May 2011. 

 Exhibit J. SAF/MRBC, Letter, dated 27 May 2011. 

 Exhibit K. SAF/MRBC, Letter, dated 7 June 2011. 

 Exhibit L. Applicant’s Rebuttal, Letter, 12 July 2011, 

 w/atchs. 

 

 

 Panel Chair