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Decision Text

AF | BCMR | CY2013 | BC 2013 02033
Original file (BC 2013 02033.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:			DOCKET NUMBER:  BC-2013-02033

	 				COUNSEL:  NONE

					HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT: 

The entry of his name in the Air Force Family Advocacy Program 
(FAP) Central Registry Board (CRB) for Incident Status 
Determination Review (ISDR) cases 20110141 and 20110142 be 
removed along with all associated records.

________________________________________________________________

APPLICANT CONTENDS THAT:

He was tried by general court-martial and acquitted of the 
charges of alleged child abuse on 19 March 2013.  The FAP 
refuses to grant an ISDR for review and removal of those records 
in their database.  They also refuse to consider the new 
information that was not available at the time of the CRB 
because it was submitted by the Area Defense Counsel. 

In support of his appeal, the applicant submits the CRB 
determinations, ISDR requests and the Record of Trial.

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

________________________________________________________________

STATEMENT OF FACTS:

The applicant is a member of the Air Force serving in the grade 
of captain.

Documentation submitted by the applicant shows that on 5 June 
2012, the applicant’s commander referred charges against him for 
unlawfully striking a child under the age of 16 on his leg, back 
arms and chest and hand with a belt; and unlawfully striking a 
child under the age of 16 on his arms with a belt, in violation 
of Article 128, Uniform Code of Military Justice.

On 19 March 2013, during a general court-martial, he was tried 
and acquitted of those charges. 

________________________________________________________________


AIR FORCE EVALUATION:

AFMOA/SGH recommends denial.  The available documentation 
reflects the applicant’s legal representation submitted a 
request on 18 April 2013 for an ISDR.  The memorandum states the 
applicant was acquitted at a general court-martial of all 
charges by a military judge.  The memorandum further alleges the 
CRB met, heard no witness testimony and only relied on written 
police reports.

The memorandum dated 25 October 2011 shows the determination 
made by the CRB and that the applicant had 30 days from 
notification to submit a written request for an ISDR.  The 
applicant requested an ISDR on 30 November 2011; however, it was 
denied due to no additional new evidence.  After his acquittal, 
the applicant’s attorney submitted another ISDR claiming 
additional information that was not available until after the 
30 day timeframe.  This request was also denied due to no new 
information other than the applicant was acquitted.

The applicant’s case was reviewed at the CRB, at which time it 
was determined that it met the criteria for maltreatment.  Per 
Air Force Family Advocacy Program Standards, 1 October 2009, 
“met criteria” indicates an alleged incident of child 
maltreatment has been substantiated by the CRB to be merited or 
founded.  The preponderance of available information indicates 
that abuse or maltreatment occurred is of greater weight or more 
convincing than the information that indicates that abuse or 
maltreatment did not occur.  

The CRB is required to make determinations by evaluating all 
available information using Department of Defense (DoD)/Air 
Force maltreatment definitions and guidance.  If the CRB 
determines the case meets criteria as defined by DoD/AF 
maltreatment definitions, it is entered into the AF Central 
Registry database.  It is important to note that all cases are 
decided on a preponderance of the information criteria, not 
beyond a reasonable doubt.  Even though the applicant was 
acquitted within the legal system, it does not mean his case did 
not meet the clinical definition for child physical and 
emotional maltreatment.

The complete SGH evaluation is at Exhibit B.

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 31 October 2013, for review and comment within 
30 days (Exhibit C).  As of this date, this office has received 
no response.

________________________________________________________________

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. The 
applicant contends that due to his acquittal of the charges of 
alleged child abuse entry of his name in the Air Force Family 
Advocacy Program Central Registry Board should be removed along 
with all associated records.  After reviewing all the evidence 
provided by the applicant we do not believe approval of the 
requested relief is appropriate.  This Board has always operated 
under the principle that regularity is presumed in the conduct 
of actions by Air Force officials and that the burden for 
providing a showing of error or injustice rests with the 
applicant.  The applicant’s contentions have undergone extensive 
reviews by the CRB and we have seen no evidence which would lead 
us to disagree with their assessments.  Therefore, we agree with 
the opinion and recommendation of the Air Force office of 
primary responsibility and adopt its rationale as the basis for 
our conclusion that the applicant has been a victim of an error 
or injustice.  Accordingly, this application is not favorably 
considered.  

___________________________________________________________

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 AFBCMR Docket 
Number BC-2013-02033 in Executive Session on 7 January 2014, 
under the provisions of AFI 36-2603:


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-02033 was considered:

    Exhibit A.  DD Form 149, dated 10 Sep 12, w/atchs.
    Exhibit B.  Letter, AFMOA/SGAT, dated 29 Jul 13.
    Exhibit C.  Letter, SAF/MRBR, dated 31 Oct 13.




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