RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-04278 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

a. His court-martial conviction and sentence be set aside. 

 

b. His promotion to the grade of staff sergeant be reinstated 
with two years time in grade (TIG). 

 

c. He be given a line number to the grade of technical sergeant 

(TSgt) due to his inability to test. 

 

d. He be allowed to reenlist. 

 

e. He be considered for a Permanent Change of Station (PCS) 
assignment. 

 

__________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His conviction was improper because the evidence used against him 
shows the incident occurred at least 20 minutes prior to the 
truck passing the guard shack. This is evident when comparing 
the times in the blotter report, incident report and the time 
stamp of the photo. 

 

In support of his request, the applicant provides copies of a 
photo, blotter report, AF IMT 1168, Statement of 
Suspect/Witness/Complainant; AF Forms 910, Enlisted Performance 
Report (AB thru TSgt); letters of recommendation, and other 
documents associated with his request. 

 

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

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is currently serving in the Air Force in the grade 
of senior airman. 

 

On 3 Apr 05, the applicant did, at or near Shreveport, Louisiana, 
physically control a vehicle, to wit: a passenger car, while the 
alcohol concentration in his breath was .08 grams of alcohol per 
210 liters of breath or greater as shown by a chemical analysis. 


For this misconduct the applicant was reduced to the grade of 
senior airman, with a new date of rank of 25 Apr 05 and 
forfeiture of $938 pay per month for two months. 

 

On 23 Oct 10, an unidentified individual drove out the Goodfellow 
AFB (GAFB), Texas gate at a high rate of speed, even after being 
directed to slow down, and almost struck the 17th Security Forces 
Squadron commander with his vehicle. 

 

On 24 Oct 10, the applicant, then a staff sergeant (SSgt), 
attempted to reenter the installation. The vehicle he was 
driving matched the description of the vehicle involved in the 
incident the previous day. Subsequently, the 17th Security 
Forces Squadron commander identified the applicant as the 
individual who was driving the vehicle on 23 Oct 10. The 
applicant was eventually charged with willfully disobeying a 
lawful order from a superior commissioned officer to stop his 
vehicle, in violation of Article 90, Uniform Code of Military 
Justice (UCMJ); reckless operation of a vehicle for driving at an 
excessive rate of speed through the gate at GAFB in violation of 
Article 111, UCMJ; and wrongfully and recklessly engaging in 
conduct, by driving at an excessive rate of speed through the 
gate, conduct which was likely to cause death or grievous bodily 
harm, in violation of Article 134, UCMJ. 

 

On 20 Jan 11, the applicant’s Special Court-Martial convened. He 
elected to be tried by military judge alone. At trial, the 
applicant pled not guilty to all charges and specifications. He 
was represented by counsel and had the opportunity to cross-
examine the witness against him and present evidence in his own 
behalf. The military judge found the applicant guilty of 
negligent dereliction of duty, in violation of Article 92, UCMJ, 
but found the applicant not guilty of the remaining charges and 
specifications. Consequently, the military judge imposed 
punishment consisting of restriction to the limits of GAFB, Texas 
for 30 days and reduction to the grade of senior airman (SrA). 

 

On 14 Feb 11, the convening authority approved the findings and 
sentences as adjudged. On 23 Feb 11, the applicant’s case was 
reviewed by a judge advocate pursuant to Article 64, UCMJ, who 
determined the findings and sentence were correct in law and 
fact. 

 

As a result of his court-martial conviction, the applicant 
received a referral enlisted performance report (EPR) for the 
period 21 Mar 10 through 29 Sep 11. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial of the applicant’s request to set 
aside his court-martial conviction and sentence. JAJM states the 
Board’s ability to correct records related to courts-martial is 


limited. Specifically, section 1552(f)(1) permits the correction 
of a record to reflect actions taken by a reviewing authority 
under the UCMJ. Additionally, section 1552(f)(2) permits the 
correction of records related to action on the sentence of 
courts-martial for the purpose of clemency. Apart from these two 
limited exceptions, the effect of section 1552(f) 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. Therefore, the Board cannot expunge the applicant’s 
court-martial conviction from his records, but may mitigate or 
set aside his punishment. 

 

The applicant alleges both error and injustice in his court-
martial. His allegation is based on a time discrepancy between a 
photograph showing a truck driving through the base gate alleged 
to be his and the blotter entry as well as the incident report. 
Although the time stamp on the photograph is difficult to make 
out on the provided photograph, the applicant alleges that it 
shows this vehicle travelled through the gate 20 minutes prior to 
the time stated in the blotter and the incident report. 

 

The time stamped photograph and the incident report were both 
prosecution exhibits in the applicant’s court-martial. 
Additionally, the blotter entry was a defense exhibit. As such, 
the military judge had the opportunity to review these documents 
and note any discrepancies before rendering a finding of guilty 
on one of the specifications. Furthermore, the applicant had the 
ability to challenge these documents and argue the discrepancy 
during the court-martial. The military judge was in the best 
position to evaluate the evidence in this case. He heard 
testimony from the main witness against the applicant, Major M. 
and heard testimony from five additional witnesses, from both the 
prosecution and the defense. The military judge was able to 
weigh the testimony, the credibility of the witnesses and the 
documentary evidence in coming to his findings. It is hard to 
conclude that the military judge’s decision is anything other 
than neutral and unbiased considering he found the applicant 
guilty of only one of the three specifications and also wrote a 
letter in support of the applicant’s request for clemency to the 
convening authority. 

 

While clemency may be granted under 10 U.S.C. §1552(f)(2), the 
applicant provides little justification for his request, and 
clemency is not warranted in this case. In his request, the 
applicant relies heavily upon a letter written by the military 
judge in support of the applicant’s request for clemency to the 
convening authority. The military judge provides in part that 
the type of offense the applicant was convicted of usually 
results in non-judicial punishment, not a court-martial. 
Nonetheless, the commander has broad discretion in disposing of 
misconduct and the applicant’s commander elected to proceed with 
a court-marital for these offenses. The record shows that the 
applicant was afforded all of the procedural rights offered by 
the court-martial and appellate process. The applicant pled not 


guilty to the offenses and was able to have an impartial military 
judge decide whether the evidence showed, beyond a reasonable 
doubt, that the applicant had committed the offenses to which he 
pled guilty. During the pre-sentencing phase of the trial, the 
members heard evidence in aggravation, as well as extenuating or 
mitigating evidence from the applicant. The military judge 
evaluated the evidence and determined the appropriate punishment 
for the offense committed by the applicant. The punishment 
imposed by the military judge was under the maximum punishment 
permitted by law, which allowed the military judge to sentence 
the applicant to forfeiture of two-thirds pay per month for three 
months and confinement for three months. 

 

A review of the Record of Trial indicates that all of the 
applicant’s rights were observed throughout the court-martial 
process. 

 

The complete JAJM evaluation is at Exhibit C. 

 

HQ AFPC/DPSOE recommends denial of the applicant’s request to be 
given a line number to the grade of technical sergeant should his 
court-martial conviction be set aside and his promotion to the 
grade of staff sergeant be reinstated. DPSOE states the 
applicant is currently a SrA with a 3 Feb 11 date of rank (DOR) 
and a 29 Aug 12 date of separation (DOS). Based on these dates, 
the applicant will not be eligible for promotion consideration to 
SSgt before his separation date (unless he receives a favorable 
RE code). Should the Board set aside the court-martial and 
restore his rank to SSgt, he would be eligible for promotion 
consideration to the grade of TSgt during promotion cycle 12E6, 
provided he has a non-referral EPR, a favorable reenlistment (RE) 
code, and the recommendation of his commander. 

 

DPSOE states the applicant has never been considered or selected 
for promotion to TSgt and current AF policy does not allow for 
automatic promotion. 

 

The complete DPSOE evaluation is at Exhibit D. 

 

HQ AFPC/DPSOA recommends denial of the applicant’s request to 
change his RE code. DPSOA states the applicant was demoted on 
3 Jan 11 per a court-martial sentence. The applicant’s RE code 
was changed to 4D, which denotes “Grade is SrA/E-4, completed at 
least 9 years total active federal military service (TAFMS), but 
fewer than 16 years TAFMS, and has not been selected for 
promotion to SSgt/E-5).” 

 

The applicant’s RE code of 4D is correct based on him being in 
the grade of SrA and having over 9 but fewer than 16 years of 
service. 

 

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

 


HQ AFPC/DPAPP recommends denial of the applicant’s request to be 
considered for a PCS assignment. DPAPP states the applicant is 
currently ineligible to PCS due to his RE code and his inability 
to obtain the necessary service retainability required for a PCS 
move. Based upon his current rank and time in service (TIS), the 
applicant’s High Year of Tenure (HYT) is Dec 12. In order to be 
given a normal CONUS assignment, an Air Force member must be able 
to obtain 24 months service retainability to satisfy the move. 

 

The complete DPAPP evaluation is at Exhibit F. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

By letter dated 13 Apr 12, the applicant states he understands 
that when someone attempts to have a court-martial decision or 
punishment set aside, only the decision of the judge, 
jurisdiction or convening authority is questioned. He is not 
asking for the judges’ decision to be questioned, but instead he 
is questioning the evidence used to convict him. None of the 
security forces personnel including the commander knew it was 
possible to save the video camera footage, the blotter report, 
and the written statement made by Major M. after he was arrested 
at the gate. 

 

The applicant believes the reason that his was referred to a 
court-martial was not because of the incident but more so because 
of the accuser’s rank and authority as the security forces 
squadron commander. This belief stems from speaking with several 
individuals about incidents that they were involved in and the 
fact that they were not referred or considered for a court-
martial. 

 

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

 

_________________________________________________________________ 

 

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. Although the applicant challenges the evidence used 
to convict him, we do not find his arguments sufficiently 
persuasive to override the rationale provided by the Air Force 
offices of primary responsibility (OPRs). Therefore we agree 
with the opinions and recommendations of the Air Force OPRs and 
adopt their rationale as the basis for our conclusion the 
applicant has not been the victim of an error or injustice 
regarding this issue. In the absence of persuasive evidence to 
the contrary, we find no 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-
2011-04278 in Executive Session on 10 Jul 12, under the 
provisions of AFI 36-2603: 

 

 Panel Chair 

 Member 

 Member 

 

 

 

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-04278 was considered: 

 

 Exhibit A. DD Form 149, dated 1 Nov 11, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 13 Jan 12. 

 Exhibit D. Letter, AFPC/DPSOE, dated 30 Jan 12. 

 Exhibit E. Letter, AFPC/DPSOA, dated 2 Mar 12, w/atch. 

 Exhibit F. Letter, AFPC/DPAPP, dated 16 Mar 12. 

 Exhibit G. Letter, SAF/MRBR, dated 20 Mar 12. 

 Exhibit H. Letter, Applicant, dated 13 Apr 12, w/atchs. 

 

 

 

 

 Panel Chair