RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05694
		COUNSEL:  NONE
		HEARING DESIRED:  NOT INDICATED

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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to honorable.

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APPLICANT CONTENDS THAT:

The applicant submits his application through his Senator’s 
office and presents the following contentions:

1.  The discharge and punishment he received from his court-
martial was improper and unjust and was resolved through a 
civilian Pretrial Intervention (PTI) program.

2.  The double-jeopardy policy was disregarded or not considered 
during his trial.

3.  The County Solicitor did not surrender and declined the Air 
Force’s attempt to assume jurisdiction of the crime.

4.  How did his court-martial supersede and not even take into 
account the civilian resolution which was completed prior to the 
court-martial?

5.  His discharge was inequitable as it was based on an isolated 
civilian incident in almost 6 and 1/2 years of honorable service 
without any adverse actions or incidents.  His military record 
before the incident was exemplary.

6.  He has not had any criminal incidents except for a minor 
traffic offense since his discharge and humbly requests 
clemency.

7.  He is currently attending college to obtain a degree in 
early education.  His goal is to gain eligibility for the 
“Troops for Teachers” program through the military.  

In support of his request, the applicant provides a personal 
statement, copies of his DD Form 214, Certificate of Release or 
Discharge from Active Duty; enlistment/reenlistment documents, 
performance reports, military records, college awards and 
certificates, a PTI program brochure, and support/clemency 
letters.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 1 Dec 89.  

On 8 May 96, the applicant, then a senior airman, assigned to 
the Security Forces Squadron, pled guilty and was found guilty, 
during a general court-martial, of one charge and specification 
of conspiring to steal and staging a robbery of over $100 at a 
local casino, in violation of Article 81, Article 112a, Uniform 
Code of Military Justice (UCMJ); one charge and one 
specification of stealing $4,087 from a local casino, in 
violation of Article 121, UCMJ; and one charge and one 
specification of impeding an investigation into the staged 
robbery of the casino; in violation of Article 134, UCMJ.  He 
was sentenced to a BCD, confinement for eight months, and a 
reduction to the grade of E-1.  Because the applicant was in 
confinement, he was not allowed to continue the PTI program.  On 
25 Jul 96, the convening authority approved the findings and 
sentence.  The applicant raised two assignments of error to the 
Air Force Court of Criminal Appeals (AFCCA).  He asserted that 
it was unlawful for him to be court-martialed for the same acts 
disposed of by the South Carolina authority and that a recent 
change to the UCMJ violated the ex post facto clause of the U.S. 
Constitution in his case.  On 14 Feb 97, AFCCA found no merit in 
these issues and affirmed the finding of guilty and the 
sentence.  The applicant appealed the decision to the United 
States Court of Appeals for the Armed Forces (CAAF).  On 14 Sep 
98, the CAAF set aside the decision of the AFCCA and asked AFCCA 
to relook the ex post facto issue.  CAAF agreed with AFCCA that 
the prosecution of the applicant in a court-martial was 
permitted and was not double jeopardy.  On 8 Sep 99, AFCCA 
reconsidered the applicant’s assertion of a violation of the ex 
post facto clause and decided that the applicant’s reduction in 
grade prior to the date of the convening authority’s action was 
invalid.  All automatic forfeitures pursuant to the new Article 
58b was restored at the appropriate pay grade.  AFCCA also 
reaffirmed the finding of guilty and the sentence.  As a result, 
the applicant’s BCD was ordered and executed on 7 Jun 99.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant alleges 
the same error he did to the AFCCA and CAAF.  Both courts 
received extensive written briefs and oral arguments from both 
defense and government appellate counsel.  The applicant was 
granted his full appellate rights.  The final result was the Air 
Force did not violate the double jeopardy clause and it was 
legal and allowable for the applicant to be prosecuted at a 
court-martial.

At his court-martial, the applicant brought up the double 
jeopardy issue and the trial judge ruled that there was no 
violation.  The applicant then pled guilty to the charges and 
specifications.  The applicant, who was represented by military 
counsel, had the opportunity to demand the government prove the 
offenses against him.  Prior to accepting his guilty plea, as 
evidenced by the record of trial, the military judge explained 
the elements and definitions of the offenses to which the 
applicant plead guilty, and the applicant explained in his own 
words why he believed he was guilty.  The court received 
evidence in aggravation, as well as in extenuation and 
mitigation, prior to crafting an appropriate sentence for the 
crimes committed.  The applicant made an unsworn statement on 
his behalf stating that he knew he had committed a crime and 
that he deserved some punishment and asked for mercy for his 
daughter.  He also continued to state that his prosecution by 
the Air Force was unjust as he was enrolled in the PTI program 
with the state.  The court-martial took all of these factors 
into consideration when imposing the applicant’s sentence.

The applicant’s sentence to a BCD, confinement for eight months, 
and a reduction to the grade of E-1 was well within legal limits 
and properly characterizes his service.  

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 Veterans’ Benefit Program was 
to express thanks to 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.  It would be offensive to all those who 
served honorably to extend the same benefits to someone who 
committed crimes such as the applicant’s while on active duty.

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In 1996, he and his then girlfriend and now wife, regretfully 
took the funds from the local establishment in an act of 
desperation that came from months of financial hardship and 
stress.  Upon their arrest for the larceny, they were both 
eligible for the PTI program, due to it being a first offense.  
The victim and District Attorney’s office both supported 
intervention, plea of guilty, and return of monies.  They both 
completed the program and her record was expunged and cleared.  
In May 96, he pled guilty to the charges to rectify his mistake 
and continue atonement for the crime.  This was also the advice 
by his military counsel who instructed him to ensure that he 
completed the PTI program in case the double jeopardy inquiry 
was resolved so his record could be expunged.  He completed all 
the requirements of the program which included: community 
service hours, restitution, financial counseling and “scared 
straight” counseling sessions.  He was convicted of all charges 
during the court-martial and sentenced to confinement, reduction 
of rank, and a BCD.  The conviction violated his pretrial 
agreement and immediately revoked the intervention and he was 
set a court date while incarcerated at the Charleston 
Correctional Facility.  Although he had the support of his 
commander and first sergeant to recommend him for the Return to 
Duty Program (RTDP), the financial strain to his then fiancée 
and daughter compounded by his physical absence would not allow 
him to take advantage of the opportunity to resurrect his 
military career.  

His eight-month confinement sentence was reduced to six months 
due to good behavior and completion of all required programs.  
It was not realistic for him to complete a full 12-month intense 
correctional custody incarceration, new technical school and 
relocation without inflicting undue harm to his fiancée and 
daughter.  His only option was to return to his family as soon 
as possible to begin the rebuilding of what he destroyed, his 
family and career.  

He has tried to live his life honorably and without any further 
mistakes or detrimental lapse in judgment.  He has been humbled 
and remade through that year of turmoil.  

The double jeopardy inquiry has been discussed and upheld by the 
convening authority, however, that does not mean justice was 
served.  The spirit of double jeopardy clause was broken in this 
case.

The ex post facto clause had other ramifications with the loss 
of the income and family hardship.  The reduction to the grade 
of E-1 with automatic forfeitures was not expected.  

His request for clemency is not unfair to any other member of 
the military.  One misguided, immature, stress induced act does 
not tell or convey a veteran’s personal sacrifice, separation 
from family or financial hardship.  The type of discharge does 
not tell the whole story of any veteran’s military life.  He has 
paid his dues for his transgressions, more than once and by 
different agencies.  His military record will show that he not 
only met but exceeded any expectations during his career.

His clemency request is an attempt to redeem his record.  It is 
his last chance.  He was unable to utilize the RTDP prior to his 
discharge due to the ex post facto clause placing his family 
once again in financial hardship.

In further support of his appeal, the applicant has provided a 
letter from his wife.

The applicant's complete response, with attachment, is at 
Exhibit E.

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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 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.  We 
also find no evidence which indicates the applicant’s service 
characterization, which had its basis in his conviction by 
general court-martial and was a part of the sentence of the 
military court, was improper or that it exceeded the limitations 
set forth in the UCMJ.  We have considered the applicant's 
overall quality of service, the general court-martial conviction 
which precipitated the discharge, and the seriousness of the 
offense to which convicted; however, we are not persuaded the 
characterization of his discharge warrants any upgrade.  
Therefore, based on the available evidence of record, we find no 
basis upon which to favorably consider this application.

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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-2012-05694 in Executive Session on 17 Sep 13, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to Docket Number 
BC-2012-05694 was considered:

    Exhibit A.  DD Form 149, dated 26 Dec 12, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 20 Feb 13.
    Exhibit D.  Letter, SAF/MRBR, dated 24 Feb 13.
    Exhibit E.  Letter, Applicant, dated 10 Mar 13, w/atch.




								
				Panel Chair