RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00923
						COUNSEL:  NONE
                    	HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

1.  His general court-martial conviction be reversed.  

2.  He be promoted to the grade of staff sergeant ((E-5).  

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APPLICANT CONTENDS THAT:

His 6th amendment right was violated during his court-martial 
resulting in a violation of his 5th amendment right.  
Specifically, he did not have the opportunity to confront and 
cross-examine witnesses.  

In addition, he was selected for promotion to staff sergeant 
prior to his court-martial incident, but the promotion was 
withheld pending the trial outcome.  

In support of his appeal, the applicant provides personal 
statements, and copies of a legal opinion from his 1970 appeal 
to the AFBCMR, a 1977 letter to President Carter, a 1968 
clemency recommendation, a 1968 Post-Trial Clemency Evaluation, 
a 1999 advisory opinion concerning his appeal for the Purple 
Heart Medal, favorable communications, award citations, 
character references, letter of evaluation, letters of 
appreciation, letter of commendation, letters of recommendation, 
petitions form German Nationals, a clemency report, and 
Department of Veteran Affairs documents.  

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

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STATEMENT OF FACTS:

On 15 August 1968, the applicant, then a sergeant, stationed at 
Sembach Air Base, Germany, was tried by a general court-martial 
for one specification of negligent homicide, in violation of 
Article 134, Uniform Code of Military justice (UCMJ).  He was 
charged with failure to yield the right of way when entering a 
main highway causing his vehicle to collide with another vehicle 
driven by a local national resulting in that individual’s death.  

At the general court-martial, before officer members, the 
applicant pled not guilty, but was found guilty of the charge.  
He was sentenced to six months confinement, forfeiture of $50 a 
month for six months, and a reduction to airman basic (E-1).  

On 30 August 1968, the convening authority approved the findings 
and sentence as adjudged.  The applicant’s case was reviewed 
pursuant to Article 69, UCMJ, and found to be supported by law.  
The Judge Advocate General did not direct review by the Air 
Force Board of Review.  The applicant was honorably discharged 
on 31 December 1968 after serving 4 years, 6 months, and 20 days 
on active duty.  

The applicant submitted similar appeals to the Air Force Board 
for Correction of Military Records (AFBCMR) in 1970 and 1971; 
however, after Board consideration, his appeals were denied.  
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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states that 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 an 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 (the effective date of the UCMJ).

Since his discharge, the applicant has submitted letters to 
President Nixon (1970) and President Carter (1977).  He has also 
submitted requests for his conviction to be set-aside on two 
separate occasions.  In 1970, their office provided a response 
to the applicant’s contentions; however, his claims have changed 
to now assert a violation of his Constitutional rights.  

The confrontation clause included in the 6th Amendment to the 
Constitution only applies to witnesses.  A statement by a judge 
advocate in argument or in a legal opinion can be addressed by 
the applicant by either his defense counsel or in a written 
response.  The applicant had the opportunity during his court-
martial and has continued to take advantage of providing written 
responses through his multiple requests to this Board and other 
government agencies.  The record of trial does not contain any 
evidence that the applicant did not have the opportunity to 
confront all witnesses who testified against him.  After the 
direct examination of all five witnesses the prosecution 
questioned during the findings portion of the court-martial, the 
applicant’s civilian defense attorney would go through a very 
thorough cross-examination of the witness.  One witness was 
disposed before trial due to unavailability and the applicant’s 
defense counsel was present during the disposition and did 
cross-examine the witness during the deposition.  A panel of six 
officers heard the evidence from both the prosecution and 
defense and decided the applicant was guilty of negligent 
homicide.  This decision was reviewed by the convening authority 
in accordance with Article 60, UCMJ, and by a judge advocate 
under Article 69, UCMJ.  The findings and sentence were approved 
and found to be supported by law.  

The complete JAJM evaluation is at Exhibit C.  

AFPC/DPSOE defers to AFLOA/JAJM citing JAJM has determined there 
were no legal errors requiring corrective action regarding the 
applicant’s court-martial sentence.  DPSOE states they are 
unable to verify whether the applicant was considered for 
promotion to staff sergeant as promotion history files are only 
maintained for a period of ten years as outlined in Air Force 
Manual 37-139, Records Disposition Schedule, Table 36-22, Rule 
29.  Ten years is generally considered an adequate period to 
resolve any promotion inquires or concerns.  

The complete DPSOE evaluation is at Exhibit D.  

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APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

It appears the Air Force continues to maintain status quo to 
protect its image without regard for his civil rights.  For 
social or military change to take place, the status quo needs to 
be challenged in its axiomatic conclusion of the issue of 
discredit or prejudice to have occurred in the issues before the 
wrongful conviction of military members.  He does not argue the 
constitutionality of Article 134.  If he had received a punitive 
discharge as a result of his conviction, he would have had 
appeal rights which may have resolved the matter in a favorable 
disposition.  This may have allowed him to continue his military 
career, which was an option he had considered prior to and 
during his court-martial proceedings.  When one considers his 
post-conviction accomplishments, he would have been a 
significant asset to the Air Force in any career field.  His 
original intent upon seeking reversal of his conviction was to 
be returned to active duty to serve his country as he had 
previously.  His educational accomplishments would have provided 
him with more skills to perform his duties as a medic or 
investigator.  Unfortunately, his loss of rank and the 
derogatory impact of his conviction would have stigmatized him 
and prevented him from having a significant career with the Air 
Force.  His continued pursuit of redress in this matter 
demonstrates his tenacity, a strong trait for a career in any 
field, especially in a healthy distrust of the government.

The applicant’s complete rebuttal is at Exhibit F.  

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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 an error or an injustice.  We took 
notice of the applicant's complete submission 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 the applicant has not been the victim of an error or 
injustice.  We note the applicant’s contentions that “he did not 
have the opportunity to confront and cross-examine witnesses;” 
however, the record of trial does not contain any evidence that 
he or his defense attorney did not have the opportunity to 
confront all witnesses who testified against him.  Therefore, in 
the absence of evidence to the contrary, we do not find it in 
the interest of justice to recommend granting the relief sought 
in this application.

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.

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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 AFBCMR Docket 
Number BC-2013-00923 in Executive Session on 3 December 2013, 
under the provisions of AFI 36-2603:

	                           , Panel Chair
	                           , Member
	                           , Member



The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2013-00923:

Exhibit A.  DD Form 149, dated 19 Feb 13, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, AFLOA/JAJM, dated 11 Apr 13.
Exhibit D.  Letter, AFPC/DPSOE, dated 29 Apr 13.
Exhibit E.  Letter, SAF/MRBR, dated 31 May 13.
Exhibit F.  Letter, Applicant, dated 13 Jun 13.




                    
Panel Chair
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