RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2013-01599
      COUNSEL: NONE
	                 				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His dishonorable discharge be upgraded.  

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APPLICANT CONTENDS THAT:

His discharge was inequitable because it was based on a non-
service related personal incident in his over six years of 
honorable service without any other adverse actions.  He was 
only found guilty of sodomy, not forcible sodomy.  He was not 
the initiator of the communication between him and the minor and 
the minor told him he was 17 years of age.  During confinement, 
he has been a model inmate.  For these reasons, he should not 
have been dishonorably discharged.  

In support of his appeal, the applicant provides a personal 
statement and copies of a DD Form 293, Application for the 
Review of Discharge from the Armed Forces of the United States; 
Air Force Court of Criminal Appeals (AFCCA) package; Record of 
Trial; Enlisted Performance Reports (EPRs); Personal Data Sheet; 
college transcripts; Honor Society acceptance letter; DD Form 
214, Certificate of Release or Discharge from Active Duty; Air 
Force Parole and Clemency board discharge upgrade denials; 
Secretary of the Air Force discharge upgrade denial; Veterans 
Administration discharge upgrade denial; and Clemency, 
Corrections and Officer Review Division discharge upgrade 
denial.  

A copy of the applicant’s complete submission, with attachments, 
is at Exhibit A.

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STATEMENT OF FACTS:

The applicant is a former member of the Regular Air Force who 
served on active duty from 3 December 2002 to 14 December 2012.  
On 10 July 2009, the applicant, then a staff sergeant (E-5), was 
tried and found guilty at a general court-martial of sodomy with 
a child who had attained the age of 12, but was under the age of 
16, in violation of Article 125, Uniform Code of Military 
Justice (UCMJ); indecent liberties with a male under the age of 
16; and giving alcohol to a minor, both in violation of Article 
134, UCMJ.  The applicant was also charged with forcible sodomy, 
in violation of Article 125, UCMJ, but was found not guilty.  As 
a result, he was sentenced to a dishonorable discharge, eight 
years confinement, forfeiture of all pay and allowances, and 
reduction to the grade of airman basic (E-1).  

On 29 September 2009, the convening authority approved the 
findings and sentence.  The forfeitures were deferred until 
action and all mandatory forfeitures were waived for a period of 
six months.  The applicant appealed to the AFCCA, who set aside 
the findings of guilt to the indecent liberties and, providing 
alcohol to a minor, specifications.  AFCCA affirmed the findings 
of guilt for the sodomy specification and reassessed the 
sentence, but found the sentence correct in law and fact and 
found no error prejudicial to the substantial rights of the 
applicant occurred.  AFCCA issued their opinion on 29 June 2012.  
The applicant petitioned the United States Court of Appeals for 
the Armed Forces (USCAAF) for review. USCAAF denied the petition 
on 15 November 2012.  The applicant’s dishonorable discharge was 
ordered to be executed on 10 December 2012.  

The applicant was dishonorably discharged effective 14 December 
2009 after serving eight years, seven months, and seven days on 
active duty.  He had lost time from 10 July 2009 through 
14 December 2012.  

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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 Air Force Board for 
Correction of Military Record’s (AFBCMR) 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 reviewing authorities 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 AFBCMR 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).  

Rules for Courts-Martial 1003(b)(8)(B) states that a 
dishonorable discharge “should be reserved for those who should 
be separated under the conditions of dishonor, after being 
convicted of offenses usually recognized in civilian 
jurisdictions as felonies…”  Sodomy of a child is a felony in 
civilian jurisdictions.  The applicant’s sentence to a 
dishonorable discharge, confinement to eight years, and 
reduction to the grade of airman basic, was well within legal 
limits.  This discharge characterization was and continues to be 
part of a proper sentence and properly characterizes the 
applicant’s service.  

It is JAJM’s opinion that clemency in this case would be unfair 
to those individuals who honorably served their country while in 
uniform.  It addition, it would be offensive to those who served 
honorably to extend the same DVA benefits to someone who 
committed crimes such as the applicant’s while on active duty.  
Upgrading the applicant’s discharge is not appropriate.  

The complete JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He understands that the UCMJ is our law and notes the comment by 
the Air Force Office of Primary Responsibility’s (OPR) that 
airmen convicted of a felony offense should receive a 
dishonorable discharge; however, sometimes our laws are unjust 
and unfair.  

He is not asking for time off of his sentence.  He committed a 
crime and he has made peace with having to complete eight years 
of confinement for it.  He simply asks for an upgrade to his 
discharge characterization.  He did not intend to break the law.  
He did not intend to engage in intercourse with a minor.  Had 
the minor been the age he claimed to be, he would not even be in 
prison.  He can’t argue that his actions were not bad conduct in 
nature, but they were never dishonorable.  

The applicant’s complete rebuttal 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 timely filed.

3.  Insufficient relevant evidence has been presented to 
demonstrate the existence of an 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), 
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 that 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 Uniform Code of Military Justice (UCMJ).  We 
have considered the applicant's overall quality of service, the 
court-martial conviction which precipitated the discharge, the 
seriousness of the offense to which convicted, and the absence 
of any documentation pertaining to post-service activities.  
Based on the evidence of record, 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 AFBCMR Docket 
Number BC-2013-01599 in Executive Session on 16 January 2014, 
under the provisions of AFI 36-2603:

	                  , Vice Chair
	                  , Member
	                  , Member

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2013-01599:

Exhibit A.  DD Form 149, dated 30 Mar 13, w/atchs.
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter, AFLOA/JAJM, dated 10 May 13.
Exhibit D.  Letter, SAF/MRBR, dated 19 May 13.
Exhibit E.  Letter, Applicant, dated 10 Jun 13.




                  
Vice Chair

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