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AF | BCMR | CY2011 | BC-2011-00126
Original file (BC-2011-00126.txt) Auto-classification: Denied













His nonjudicial punishment under Article 15 of the Uniform Code 
of Military Justice (UCMJ), be set aside or remedial alternatives 
be implemented to set-aside the punishment. 






The Article 15 is a continuing injustice and is having an effect 
on him since being discharged from the Air Force. He believes it 
will have a negative affect on his profession as an attorney, his 
reputation as a pillar of his community, and his character as an 
honorably discharged veteran. 


He was never informed or aware of the avenues and deadline for 
appeal or alternative relief for accepting the Article 15. He 
was neither aware of or informed of the protracted, unjust 
ramifications of accepting the Article 15 and the effect it would 
have on the remainder of his military service, as well as his 
post-military personal and professional life. 


He believes that receiving an Article 15 does not constitute an 
admission of guilt. His counsel at the time provided him with 
substandard legal advice regarding his situation. His counsel 
discouraged him from seeking private counsel, stating they only 
“cash your checks.” His counsel did not inform him of the 5-day 
window for appealing an Article 15 nor was he informed of any of 
his options to defend against the charge. He refers to Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 
104 S. Ct. 2052 (1984) holds that “The right to counsel is the 
right … to effective assistance of counsel.” He submits that his 
right to counsel inasmuch as it was related to the effective 
assistance of counsel in this matter was not upheld to the 
standard established by Strickland v. Washington. 


He applied for executive clemency authorized under Article II, 
Section 2, of the United States Constitution in Mar 08, but was 
denied for lack of form, because although it has no inherent 
expiration, the Article 15 is not a criminal conviction. 
Hypothetically, he would have had the opportunity to mitigate it 

with a Petition for Presidential Pardon had a conviction 


He respectfully requests a retroactive set-aside of this Article 
15, or retroactive appeal, in the interest of justice because of 
the rationale described above is sufficient evidence of the 
continuing injustice and active stigma the Article 15 represents. 


After weighing the totality of the circumstances involved in this 
case, if the Board remains not persuaded the continuing stigma 
and injustice he is experiencing does not merit mitigation, he 
requests and whole-heartedly welcomes, any suggestion the Board 
may have regarding remedial alternatives to setting-aside the 


He is licensed to practice law in New Jersey and has done so 
successfully for almost 4-years without a single allegation of 
impropriety. He considered sending character references with his 
appeal; however, he does not want to impose on the valued 
attorney-client relationships unless the Board requires further 
evidence of his admirable character. Furthermore, he volunteered 
hundreds of uncompensated hours to historical preservation, 
natural conservation, and special needs services. 


In support of his request, the applicant provides a copy of a 
letter from AFLSA/CCDC, a copy of AF Form 3070, Record of 
Nonjudicial Punishment Proceedings, and a copy of his Petition 
for Pardon after Completion of Sentence package. 


His complete submission, with attachments, is at Exhibit A. 






The applicant served in the Regular Air Force in the grade of 
Captain, having assumed that grade effective and with a date of 
rank of 8 Jan 08. He received an Article 15 on 1 Nov 05 for 
bringing a Chino P-32 Caliber handgun in a hollowed-out book, 
inside a briefcase, and then left the briefcase containing the 
handgun sitting in a public parking lot, conduct which under the 
circumstances was unbecoming an officer and a gentleman. He 
forfeited $1250.00 pay per month for 2 months. The applicant 
received an honorable discharge on 8 Jul 07 after serving 
8 years, 6 months, and 1 day on active duty. 






AFLOA/JAJM recommends denial. JAJM states the applicant accepted 
the Article 15 proceedings and waived his right to demand trial 
by court-martial. He presented written matters to and personally 
appeared before the commander. The commander found the applicant 

had committed the offense and imposed punishment. On 1 Nov 05, 
his commander notified him the Article 15 would be filed in an 
Unfavorable Information File. The applicant acknowledged receipt 
on the same date. After a legal review, the staff judge advocate 
found it to be legally sufficient. 


The application is untimely. Even assuming the applicant’s 
counsel told him nothing about the appeal process, it is hard to 
credit the applicant’s claim that he was “neither informed nor 
aware of the avenues and deadline for appeal” of the Article 15. 
AF Form 3070, Block 4c, notifies the applicant that he must 
notify the commander by 1230 hours, 2 Nov 05, whether he appeals 
the action. On 28 Oct 05, at 1230 hours, the applicant signed 
Block 5 of the form indicating he acknowledged receipt of the 
punishment and his “right to appeal.” After three days, the 
applicant signed Block 6 and initialed next to the line “I do not 
appeal.” Block 6 states, “member’s decision ends the time limit 
to appeal.” 


There is no indication, other than the applicant’s assertion, 
that either of the Area Defense Counsels (ADCs) were anything 
other than zealous advocates. 


In order to convict the applicant of the charged offense at a 
court-martial, the government would have had to prove, beyond a 
reasonable doubt that he: 


 a. Brought a handgun onto McGuire Air Force Base, New Jersey 
and then left that briefcase containing the handgun sitting in a 
public parking lot. 


 b. Under the circumstances, that conduct was unbecoming an 
officer and a gentleman. 


Based on the information available in the Automated Military 
Justice Analysis and Management System (AMJAMS), the government 
would have had sufficient evidence to prove the charges beyond a 
reasonable doubt. Considering the good chance the applicant 
would have been found guilty at trial, had a federal conviction 
on his record and could have faced a punitive discharge and 
confinement, his ADC provided effective assistance. 


The applicant does not make a compelling argument to overturn the 
commander’s original decision based on clemency. The commander 
had the best opportunity to evaluate the evidence in the case and 
weigh it against the applicant’s written response and verbal 
presentation at that time. 


The AFLOA/JAJM complete evaluation is at Exhibit C. 






In a four-page response, the applicant provides a detailed 
explanation as to why the evaluation should not be considered. 
Specifically, he cites the following reasons: 1) it asserts facts 
not in evidence; 2) it includes a moot application of the 
timeliness requirements for filing; 3) it insufficiently refutes 
the claim that he received inadequate counsel; and 4) it fails to 
address several critical elements of injustice upon which his 
application has been based. 


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






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 error or injustice. After a thorough 
review of the evidence of record and applicant's submission, we 
are not persuaded that his uncorroborated assertions, in and by 
themselves, sufficiently persuasive to override the rationale 
provided by the Air Force. Therefore, we agree with the opinion 
and recommendation of the Air Force office of primary 
responsibility and adopt the rationale expressed as the basis for 
our decision the applicant has failed to sustain his burden of 
establishing that he has suffered either an error or an injustice. 
Therefore, in the absence of persuasive evidence to the contrary, 
we find no basis to recommend granting the relief sought in this 


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






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-2011-00126 in Executive Session on 20 Sep 11, under the 
provisions of AFI 36-2603: 


, Panel Chair 

, Member 

, Member 


The following documentary evidence was considered: 


 Exhibit A. DD Form 149, dated 29 Nov 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 4 Mar 11. 

 Exhibit D. Letter, SAF/MRBR, dated 11 Mar 11. 

 Exhibit E. Letter, Applicant, dated 11 Apr 11. 






 Panel Chair 





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