RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-04160 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: YES 

 

 

________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

1. His official records be corrected to show he was not 
convicted by court-martial, but that he was punished through 
non-judicial punishment. 

 

2. His discharge be declared void and removed from his records, 
and he be returned to active duty. 

 

3. His rank of Staff Sergeant (E-5) be restored and he receive 
all back-pay and allowances. 

 

4. His referral Enlisted Performance Report (EPR) rendered for 
the period 10 Jul 10 through 9 Jul 11 be declared void and 
removed from his records. 

 

5. He be reimbursed for legal expenses incurred as a result of 
his court-martial and relieved of the $17,000 debt he owes the 
Air Force due to his discharge. 

 

6. By amendment, he requests his test scores for promotion to 
the grade of technical sergeant (E-6) be restored and that he be 
promoted to said grade if his promotion test scores qualify him 
for promotion. 

 

7. By amendment, the Narrative Reason for Separation of 
“Misconduct (Serious Offense)” in Block 28 of his DD Form 214, Certificate of Release or Discharge from Active Duty, be 
changed. 

 

________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He was falsely accused of aggravated sexual assault. He was 
found innocent of sexual assault, ancillary charges of breaking 
and entering, and one count of making a false statement. He was 
found guilty of unlawful entry and making a false official 
statement. He deserves clemency for the two convictions 
because: 

 


1. The one count of making a false official statement came from 
a hotel desk clerk who admittedly lied to the OSI. 

 

2. His squadron commander referred him for a court-martial with 
the comments that he was “unremarkable” and that he “could not 
be rehabilitated.” These comments were unfounded and resulted 
in a General Court Martial that should not have happened. 

 

3. The forum of a General Court Martial was improper. These 
were matters that should have been handled through application 
of non-judicial punishment under Article 15 of the Uniform Code 
of Military Justice (UCMJ). 

 

4. His clemency package could not have received proper 
consideration as it was over 900 pages of summary records, but 
was denied by the 18th Air Force Commander in less than three 
business days. 

 

5. His referral EPR is not accurate. It states he was 
convicted of falsifying an official document; however, he was 
actually convicted of making a false official statement. In 
addition, the overall rating on the EPR of “3” does not 
accurately reflect his performance during the rating period 

 

In support of his appeal, the applicant provides an expanded 
statement and copies of his clemency package, letters from 
several elected officials, excerpts from court-martial 
testimony, information from his military personnel records, and 
several pictures of coins and the applicant with others. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant entered the Air Force on 23 Mar 04. 

 

On 12 Jul 10, the applicant was accused of illegally entering 
the hotel room of a fellow C-17 aircrew member and sexually 
assaulting her. 

 

On 15 Feb 11, the applicant was tried at a General Court-Martial 
for two specifications of making a false official statement in 
violation of Article 107 of the UCMJ; one specification of 
aggravated sexual assault in violation of Article 120 of the 
UCMJ; one specification of burglary in violation of Article 129 
of the UCMJ; and one specification of unlawful entry in 
violation of Article 134 of the UCMJ. He pled not guilty to all 
charges and specifications. 

 

On 17 Feb 11, a military panel found the applicant guilty of one 
specification of making a false official statement, and one 
specification of unlawful entry; and imposed punishment 


consisting of a reduction in grade from SSgt (E-5) to Airman 
First Class (E-3), a forfeiture of $500 pay per month for two 
months, and a reprimand. 

 

On 24 Mar 11, the applicant’s Area Defense Counsel petitioned 
the court-martial convening authority for clemency on the 
applicant’s behalf and requested the court-martial conviction be 
changed to non-judicial punishment under Article 15 of the UCMJ. 

 

On 7 Apr 11, the court-martial convening authority approved the 
findings and sentenced the applicant as adjudged. On 23 May 11, 
the findings and sentence were reviewed and determined to be 
correct in law and in fact. 

 

On 27 Jul 11, the applicant’s commander notified him of his 
intent to recommend his discharge under the provisions of AFI 
36-3208, Administrative Separation of Airmen, for Commission of 
a Serious Offense and the applicant elected to have his case 
heard before an administrative discharge board. 

 

On 12 Oct 11, an administrative discharge review board 
recommended the applicant be discharged with an Honorable 
service characterization, without probation or rehabilitation 
for the commission of a serious offense. 

 

On 27 Oct 11, the case was reviewed and determined to be legally 
sufficient. 

 

On 14 Nov 11, the applicant was furnished an Honorable discharge 
with a Narrative Reason for Separation of “Misconduct (Serious 
Offense)” and was credited with 7 years, 7 months, and 22 days 
of active service. 

 

The remaining relevant facts pertaining to this application are 
described in the letters prepared by the Air Force offices of 
primary responsibility which are included at Exhibits C, D, E, 
and F. 

 

________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial indicating there is no evidence of 
an error or injustice. The applicant requests that the Board 
set aside his court-martial conviction and the punishment 
imposed, specifically, he seeks to have his grade restored to 
staff sergeant and to receive all back-pay as a result of the 
reduction in grade. Under 10 USC § 1552(f), the Board’s ability 
to correct records related to courts-martial is limited. 
Specifically, section 1522(f)(1) permits the correction of a 
record to reflect actions taken by a reviewing authority under 
the UCMJ. Additionally, the effect of section 1552(f)(2) is 
that the Board 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). Therefore, 


the Board cannot expunge the applicant’s court-martial 
conviction from his records, but may mitigate or set-aside his 
punishment. The applicant’s record of trial shows there was no 
error in the processing of the court-martial. The applicant 
pled not guilty at trial; nevertheless, the court adjudged guilt 
as to the false official statement specification and the 
unlawful entry specification, beyond a reasonable doubt, based 
on the evidence presented by the prosecution. A review of the 
Record of Trial indicates that all of the applicant’s rights 
were observed throughout the court-martial process. While 
clemency may be granted under 10 USC § 1552(f)(2), the applicant 
provides little justification for his request, and clemency is 
not warranted in this case. In his request, he argues that the 
type of offense that he was convicted of—making a false official 
statement and unlawful entry—generally result in non-judicial 
punishment, not court-martial. Because he was acquitted of 
aggravated sexual assault, he posits that it is unfair for him 
to have a court-martial conviction on his record for the other 
offenses. Nonetheless, the sentence imposed by the panel 
members, based on the charges that the applicant was convicted 
of, was permitted by the law. The panel members took all of the 
facts into consideration when imposing the applicant’s sentence. 
The punishment imposed by the panel members was under the 
maximum punishment permitted by law, based solely on the 
offenses that the applicant was convicted of, which allowed the 
panel members to sentence the applicant to a dishonorable 
discharge, confinement for six years, forfeiture of all pay and 
allowances, and reduction to the grade of E-1. 

 

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. 

 

AFPC/DPSOS recommends denial, indicating there is no evidence of 
an error or injustice. In accordance with AFI 36-3208, Administrative Separation of Airmen, Airmen are subject to 
discharge for Commission of a Serious Offense if the specific 
circumstances of the offense merit separation. The 
circumstances in this case warranted discharge. The applicant 
was convicted of unlawful entry and making a false official 
statement. Based on the applicant’s lack of motivation and 
conduct below the standards required for military service, 
discharge was warranted. Based upon the applicant’s serious 
acts of misconduct, neither his discharge order nor his 
DD Form 214 should be changed. The administrative discharge 
board determined that the negative aspects of the applicant’s 
career did not outweigh the positive, and therefore recommended 
he be separated with an Honorable service characterization. The 
applicant’s Narrative Reason for Separation (misconduct—serious 
offense) was the appropriate reason as indicated. The discharge 
was consistent with the procedural and substantive requirements 
of the discharge instruction and was within the discretion of 
the discharge authority. The applicant did not submit any 
evidence or identify any error or injustice that occurred in the 
discharge processing. He provided no facts warranting a change 
to this discharge order or narrative reason for separation. 

A complete copy of the AFPC/DPSOS evaluation is at Exhibit D. 


 

AFPC/DPSID recommends denial of his request to void and remove 
his referral EPR. The applicant contends this EPR, rendered for 
the period of 10 Jul 10 through 9 Jul 11, contains references to 
his court-martial conviction, the prosecution of which the 
applicant believes was unjust and negligent. AFI 36-2406, Officer and Enlisted Evaluation Systems, Paragraph 3.6.7., 
states “Comments relating to the ratee’s behavior are 
‘mandatory’ on the ratee’s next Officer Performance Report, EPR, 
Training Report, or an officer’s next Performance Recommendation 
Form if the ratee has been convicted by court-martial.” In this 
case, the applicant’s rating chain had no choice about 
commenting on the General Court-Martial conviction on the 
contested report. Further, the applicant contends that the 
overall “3” rating on the contested report does not accurately 
reflect his performance during the overall period. It is not 
for the applicant himself to make this determination, rather his 
rating chain who were in the best position to accurately observe 
and report on his overall duty performance during the rating 
period. IAW AFI 36-2401, Correcting Officer and Enlisted 
Evaluation Reports, the most effective evidence the applicant 
can provide consists of statements from the evaluators who 
signed the report or from other individuals in the rating chain 
when the report was signed. The applicant has provided none of 
these, and merely makes this allegation entirely from his own 
personal viewpoint, and provides no evidence from substantiated 
sources or officials that could support his claim. An 
evaluation report is considered to represent the rating chain’s 
best judgment at the time it was rendered. Once a report is 
accepted for file, only strong evidence to the contrary warrants 
correction or removal from the individual’s record. The 
applicant has not provided compelling evidence to show that the 
report is unjust or inaccurate as written. 

 

A complete copy of the AFPC/DPSID evaluation is at Exhibit E. 

 

AFPC/DPSOE recommends denial of the applicant’s request to 
reinstate his rank of SSgt. The applicant was considered and 
selected for promotion to SSgt during cycle 07E5 and received a 
date of rank of 1 Jul 08. On 17 Feb 11, a military panel found 
the applicant guilty at a court-martial. The punishment imposed 
consisted of a reduction of rank from SSgt to A1C, forfeiture of 
$500 pay per month for two months, and a reprimand. AFLOA/JAJM 
reviewed the case, found no error in the processing of the 
court-martial and recommends denial of the applicant’s request 
to set aside his conviction. Based upon the recommendation from 
AFLOA/JAJM, recommend denial of the request for restoration of 
rank of SSgt. 

 

A complete copy of the AFPC/DPSOE evaluation is at Exhibit F. 

 

________________________________________________________________ 

 

 

 


APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant states that he refutes virtually all of the points 
made in the advisory opinions. While AFLOA/JAJM has adopted the 
faulty premise that the basis of his request lies in the fact he 
should not have been convicted of ancillary charges because he 
was found not guilty of the major crimes he was accused of, this 
is not the case. His conviction should be overturned and he 
should be granted clemency because he is innocent and was 
subjected to negligent prosecution on grounds that were 
unsupported. During the course of the multiple proceedings, it 
became clear the prosecution was not interested in justice. The 
defense was not allowed to record any proceedings. The 
prosecution blocked the admission of reports submitted by the 
Sexual Assault Nurse Examiner showing that there had been no 
sexual contact. Multiple conflicting statements were admitted 
by the accuser, the aircraft commander, and the hotel reception 
desk clerk. The aircraft commander was willing to testify only 
after being granted immunity from prosecution and the hotel 
reception desk clerk admitted to lying in her statement. There 
were recurrent statements made by the prosecution that a DNA 
swab with ONLY the accusers DNA on it had come from him. This 
same DNA sample that had supposedly come from him, did not have 
his DNA on it, and had also been admittedly tampered with by the 
Office of Special Investigation (OSI) in direct contradiction of 
the Air Force OSI Instructions. According to the OSI agent, who 
testified at the trial, the evidence was “the biggest mess” he 
had ever seen. 

 

As for his EPR, it is inaccurate in that it indicates he was 
convicted of falsifying an official document when he was 
actually convicted of false official statements. If in fact, 
supervisory personnel are “required” to document the court-
martial conviction, they should also be required to do so 
correctly. If the EPR cannot be removed, at a minimum, it 
should be updated to reflect the proper narrative. 

 

He disagrees with the reason for Discharge of “Misconduct—
Serious Offense” due to the action of the discharge board 
members and his Honorable Discharge characterization. The 
discharge board members considered retaining him in the Air 
Force until it became apparent that he would not be able to 
transfer to another command. Had it been possible to transfer 
to another command, the board would have recommended his 
retention in the Air Force. Instead, they recommended his 
discharge because they believed he would continue to be harassed 
by personnel within his command if he remained on active duty. 

 

A complete copy of the applicant’s response is at Exhibit G. 

 

________________________________________________________________ 

 

 

 


 

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 took 
notice of the applicant's complete submission, including his 
response to the advisory opinions rendered in his case, in 
judging the merits of the case; however, we agree with the 
opinions and recommendations of the Air Force offices of primary 
responsibility and adopt their rationale as the basis for our 
conclusion that the applicant has not been the victim of an 
error or injustice. While the applicant argues that his 
conviction by general court-martial was the result of his 
negligent prosecution on unsupported grounds, our authority to 
provide relief is limited to clemency. Accordingly, we do not 
find the applicant’s arguments and the documentation provided 
sufficient to convince us the determination of his punishment or 
the subsequent administrative discharge review board’s decision 
were inappropriate, nor do they support a case for clemency. 
Further, concerning the applicant’s request to void and remove 
his referral EPR, the Board notes that comments relating to the 
ratee’s behavior are mandatory on the ratee’s next EPR if the 
ratee has been convicted by court-martial. However, 
notwithstanding the above, the Board does agree the applicant’s 
referral EPR is incorrect as written, and thus warrants 
correction to the extent set forth in the next section of this 
Record of Proceedings. Therefore, in the absence of evidence to 
the contrary, we find no basis to recommend granting the 
extensive relief sought in this application, with the exception 
of correcting the inaccurate wording in his referral EPR 
concerning the applicant’s conviction. 

 

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 BOARD RECOMMENDS THAT: 

 

The pertinent military records of the Department of the Air 
Force relating to the APPLICANT be corrected to show that the 
second bullet in Section III, Block 2, on his referral DD Form 
910, Enlisted Performance Report (AB thru TSgt), for the period 
covering 10 July 2010 through 9 July 2011 be changed to read, 
“Convicted in court martial of unlawful entry/making a false 
official statement—led to reduction in rank to A1C.” 

 


 

The following members of the Board considered AFBCMR Docket 
Number BC-2011-04160 in Executive Session on 18 Sep 12, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-04160 was considered: 

 

 Exhibit A. DD Form 149, dated 28 Sep 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 22 Mar 12. 

 Exhibit D. Letter, AFPC/DPSOS, dated 23 Apr 12. 

 Exhibit E. Letter, AFPC/DPSID, dated 23 May 12. 

 Exhibit F. Letter, AFPC/DPSOE, dated 11 Jun 12. 

 Exhibit G. Letter, SAF/MRBR, dated 2 Jul 12. 

 Exhibit H. Letter, Applicant, dated 16 Jul 12. 

 

 

 

 

 

 Panel Chair