RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02460

	  	COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded. 

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APPLICANT CONTENDS THAT:

The charges he was convicted of sound really bad, but he was found not guilty of rape, the worst of the charges against him.  He was given a temporary assignment for which he was not properly trained.  He was never in trouble before or after his conviction.  That was 26 years ago and he has done his time.  His crimes were no worse than those committed by President Bill Clinton, who was his Commander-and-Chief at the time.  

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

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STATEMENT OF FACTS:

The applicant was serving in the grade of Sergeant during the period of time in question.  

On 15 Dec 86, the applicant was found guilty at a General Court-Martial of attempting to commit sodomy, committing indecent assaults upon two airmen, and for wrongfully having sexual intercourse with one airman.  For these acts, he received punishment of confinement for seven years, forfeiture of $400 pay per month for three years, reduction to Airmen Basic, and a dishonorable discharge.   

On 15 Apr 88, the applicant was furnished a dishonorable discharge due to his conviction by court-martial. 

On 5 Feb 14, a request for post-service information was forwarded to the applicant for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit E).
The remaining relevant facts pertaining to this application are contained in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice.  The applicant was a member of the United States Air Force from 3 Feb 84 to 15 Apr 88.  On 15 Dec 86, while a sergeant, he was tried before a General Court-martial before a military judge alone.  The applicant was found guilty of attempted sodomy, in violation of Article 134, UCMJ: indecent assault on two airmen, indecent language, and adultery, all in violation of Article 134, UCMJ.  The military judge sentenced the applicant to a dishonorable discharge, confinement for seven years, forfeiture of $400.00 pay per month for three years, and reduction to the grade of airman basic.  On 18 Mar 88, the convening authority set aside and dismissed the findings of guilty for adultery.  All other findings and the sentence were affirmed and the dishonorable discharge was ordered executed.  On 24 Jun 91, the Air Force Clemency and Parole Board remitted the applicant’s confinement in excess of six years.  Under 10 U.S.C. § 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts-martial is limited.  Specifically, §1552(f) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ.  Additionally, §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 §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).  Indecent assault is a felony in civilian jurisdictions.  The applicant’s sentence was well within authorized legal limits for his conviction.  This discharge characterization was and continues to be part of a proper sentence and properly characterizes his service.  Clemency in this case would be unfair to those who honorably served their country while in uniform.  Congress’ intent in setting up the Veteran’s Benefits Program was to express thanks for veteran’s personal sacrifices, separations from family, facing hostile enemy action, and suffering financial hardship.  It would be an offense 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.

A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 14 Aug 13 for review and comment within 30 days (Exhibit D).  As of this date, no response has been received by this office.

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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 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), 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 find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction 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, and the seriousness of the offenses to which convicted.  However, in the absence of any evidence related to the applicant’s post-service activities that would enable us to determine if his accomplishments since his discharge are sufficient to overcome the misconduct for which he was discharged, we find no basis upon which to favorably consider this application.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2013-02460 in Executive Session on 27 Mar 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 11 May 13, w/atch.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFLOA/JAJM, dated 18 Jul 13.
	Exhibit D.  Letter, SAF/MRBR, dated 14 Aug 13.
	Exhibit E.  Letter, AFBCMR, dated 5 Feb 14.  




                                   
                                   Panel Chair