RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-01634
			COUNSEL:   
    			HEARING DESIRED: NO 

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APPLICANT REQUESTS THAT:

1. His Bad Conduct Discharge (BCD) be upgraded to a general (under honorable) conditions discharge. 

2. His court-martial conviction be erased.  

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APPLICANT CONTENDS THAT:

He made a one-time mistake while in a rush to travel home on leave.  He was completely honest and forthcoming when questioned about the event.  

He has not been in any trouble or involved in anything that would bring discredit to his character since his discharge.

The record of trial contains no specific words or phrases that were used to obtain the files found on his computer and the files were opened once and immediately closed.   

In support of his request, the applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty. 

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

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STATEMENT OF FACTS:

On 11 Oct 2005, the applicant entered active duty.

On 23 Jun 2009, the applicant pled guilty and was convicted of one specification of wrongfully and knowingly possessing visual depictions of minors engaged in sexually explicit conduct, in violation of Article 134, Uniform Code of Military Justice (UCMJ).  

The court found him guilty as charged and he was sentenced to a BCD, confinement for 20 months and a reduction to the grade of airman basic (E-1).   

On 20 Jul 2010, the Air Force Court of Criminal Appeals affirmed the applicant’s conviction and sentence.  The applicant declined to appeal the findings and sentence and as a result, the applicant’s BCD was ordered to be executed on 13 Oct 2010.

On 12 Aug 2011, the applicant was discharged with a BCD and a narrative reason for separation of “Court Martial (Other).”

In Jun 2012, the applicant requested his case be closed in order  to provide him additional time to seek legal advice. 

On 14 Jan 2013, on behalf of the applicant, his legal counsel requested the case be re-opened.   

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request.  

JAJM states under Title 10, United States Code (USC) Section 1552(f), which amended the basic corrections board legislation, 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 50 (the effective date of the UCMJ).

JAJM notes the applicant alleges no error in the processing of the court-martial conviction against him.  The applicant pled guilty at trial to the charge and its specification.  Prior to accepting his guilty plea, as evidenced by the record of trial, the military judge ensured the applicant understood the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea was accepted by the court. 

The applicant asserts that his discharge characterization should be upgraded and that his court-martial conviction should be expunged from his record not merely because it was a one-time mistake that was made in a rush to travel home on leave but also because the evidence in his record of trial showed that during the period he was charged for the crime, no specific words or phrases were used to obtain the files that were found on his computer.  This was also coupled with the fact that said files were opened once and immediately closed.  Despite the applicant’s claims, he pled guilty to the charge and its specification.  During his court-martial the applicant admitted to the military judge that he remembered seeing young girls between the ages of  seven and eight in the videos which showed them engaging in sexually explicit conduct.  Furthermore, the applicant admitted to downloading approximately 15 files containing these videos and viewing them in his dorm room and acknowledged that he was well aware that the girls in the videos were under the age of 18.  

On the court’s acceptance of the applicant’s guilty plea, it received evidence in aggravation, as well as in extenuating and mitigation, prior to crafting an appropriate sentence for the crimes committed.  The military judge took all of these factors into consideration when imposing the sentence.   

The rule for courts-martial states that a BCD is designed as punishment for bad-conduct.  It also indicates that a BCD is more than merely a service characterization; it is a punishment for the crimes the applicant committed while a member of the armed forces.  The applicant’s sentence to a BCD, confinement for twenty months and a reduction to airman basic were well within the legal limits and was an appropriate punishment for the offense committed.  A BCD was and continues to be part of a proper sentence and properly characterizes his service.  

JAJM opines clemency in this case would be unfair to those individuals who honorably served their country while in uniform.  Congress’ intent in setting up the Veterans’ Benefits Program was to express thanks for veterans’ personal sacrifices.  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.  

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant cannot deny knowingly and wrongfully being in the possession of illegal pornography.  As noted by the military judge during his court-martial, he unknowingly downloaded the files, but afterwards did not take the due diligence to delete the illegal files.  He was in a rush to finish packing and leave for his brother’s wedding at the time.  All he can do now is explain how this mistake has negatively affected every aspect of his life.  He is forced to live with the shame of letting his family, friends and the Air Force down.  He took great pride in his service to the United States as made evident by the character statements written in his behalf.

The applicant has already been stripped of the opportunity to serve his country, was incarcerated for 10 months and has been stigmatized as a sexual offender because of his inaction to delete the illegal files.  He humbly and respectfully asks the Board to correct the injustice by correcting his military records to reflect that he was discharged under honorable conditions with a narrative reason for separation of “Convenience of the Government.” 

The applicant’s legal counsel provided a brief which includes information as to the applicant’s participation in a two year community based sexual offender’s counseling program, his enrollment in college and that the applicant has maintained steady employment since his discharge.  

The complete response, with attachments, is at Exhibit C.  

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ADDITIONAL AIR FORCE EVALUATION:

JAJM recommends denial of upgrading the applicant’s BCD.  On    14 Jan 2013, through civilian legal counsel, the applicant submitted his request for relief.  With the exception of the five page brief prepared by his civilian counsel, articulating the same argument given in support of the original request for relief, the applicant provides no new information with regard to an alleged miscarriage of justice.  

JAJM’s complete evaluation is at Exhibit F.  

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

On 27 Sep 2013, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days.  As of this date, this office has not received any response (Exhibit G).

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THE BOARD CONCLUDES THAT:

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.  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), our actions 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.  We find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial as a result of his actions and was a part of the sentence of the military court, it was improper or that it exceeded the limitations set forth in the UCMJ.  We considered upgrading the discharge on the basis of clemency; however, in view of the  applicant’s overall quality of service, the court-martial conviction which precipitated the discharge and the limited passage of time since the applicant’s discharge, we cannot conclude that clemency is warranted.  In view of the above, we cannot recommend approval based on the current evidence of record.  

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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.

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The following members of the Board considered Docket Number BC-2012-01634 in Executive Session on 5 Dec 2013, under the provisions of AFI 36-2603:

	 , Panel Chair
       , Member
 , Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 26 Mar 2012, w/atch.
    Exhibit B.  Applicant’s Master Personnel Records. 
    Exhibit C.  Letter, AFLOA/JAJM, dated 31 May 2012.
    Exhibit D.  Letter, Counsel, undated.
    Exhibit E.  Letter, Counsel, dated 14 Jan 2013, w/atch.
    Exhibit F.  Letter, AFLOA/JAJM, dated 1 Mar 2013.
    Exhibit G.  Letter, SAF/MRBR, dated 27 Sep 13.  
    



                                    
                                   Panel Chair