RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-05042
			COUNSEL:  NONE
			HEARING DESIRED:  NO


APPLICANT REQUESTS THAT:

1.  Her DD Form 214, Certificate of Release or Discharge from 
Active Duty, be amended to reflect the periods she was confined 
to prison and appellate leave.

2.  Her General Court-Martial (GCM) conviction, as it pertains 
to Charge I: Making a false official statement, and its 
specifications, be set-aside.


APPLICANT CONTENDS THAT:

She was on active duty during her confinement and appellate 
leave; however, these periods are not reflected on her DD Form 
214.

In support of her requests, the applicant provides copies of her 
DD Form 2717, Voluntary/Involuntary Appellate Leave Action; 
Proof of Appellate Leave Status memorandum, GCM order, 
memorandums and various other documents associated with her 
requests.

Her complete submission, with attachments, is at Exhibit A. 


STATEMENT OF FACTS: 

The applicant is a former enlisted member of the Air Force 
Reserve.

According to GCM Order Number 39 dated 7 June 2010, while on 
active duty orders, the applicant was tried by general court-
martial. On 12 March 2010, a military judge found her guilty of 
two specifications of making a false official statement, in 
violation of Article 107, Uniform Code of Military Justice 
(UCMJ), and one specification of larceny of money, military 
property of the United States, of a value of approximately 
$122,000, in violation of Article 121, UCMJ.

The military judge sentenced the applicant to be discharged from 
the Air Force with a bad conduct discharge, to be confined for 
18 months, to forfeit all pay and allowances, and to be reduced 
to the grade of E-1.

According to the applicant’s CMS Form 2098, Duty Status Change, 
electronically signed on 15 July 2010, the applicant’s duty 
status changed from “Present for Duty” to “Military Confinement 
- Sentenced Prisoner/30 days or More” effective 12 March 2010.

In a letter dated 7 October 2010, the Air Force Clemency and 
Parole Board considered and approved Mandatory Supervised 
Release (MSR) for the applicant.  The applicant’s term of 
supervision was effective 14 December 2010 and would expire on 
11 September 2011, unless sooner suspended or revoked for 
violation of its conditions, or otherwise terminated by 
competent authority.  The applicant was also advised and 
acknowledged that she understood that for pay purposes, she was 
in excess leave status during the period of supervised release.

According to her AF Form 899, Request and Authorization for 
Permanent Change of Station – Military, (Special Order T-0421, 
dated 7 December 2010) the applicant received PCS orders to her 
leave address in South Carolina.  The reason for the PCS was for 
MSR status.  The order stated that she would remain at her leave 
address until released from MSR status or discharged.  The order 
also stated that her DD Form 214 would not be issued until the 
final GCM order was executed.

According to a DD Form 2717, dated 13 December 2010, the 
applicant was placed on appellate leave effective 14 December 
2010.  She was advised that if she had no accrued leave, the 
entire period of appellate leave would be unpaid excess leave. 
She was further advised that she would remain on appellate leave 
until she was finally discharged.

According to DD Form 2718, Inmate’s Release Order, dated 
14 December 2010, the applicant was released from confinement 
effective 14 December 2010.

According to GCM Order Number 29 dated 7 April 2011, on 
3 February 2011, the Air Force Court of Criminal Appeals (AFCCA) 
set aside and dismissed Charge II, the specification and charge 
of larceny, of a value of approximately $122,000, in violation 
of Article 121, UCMJ.  However, the AFCCA affirmed the guilty 
finding with respect to Charge I, the false official statement 
charge.  The convening authority determined a rehearing to be 
impracticable and approved a sentence of “no punishment.”  The 
order also stated that all rights, privileges and property of 
which the accused was deprived by virtue of the sentence that 
was set aside were to be restored.

On 17 January 2012, the Air Force produced a DD Form 214 in 
response to the court action noted above.  The DD Form 
214 indicated that the applicant had been separated with an 
honorable discharge on 24 March 2010, having served 2 years, 
11 months and 21 days on active duty.  Her narrative reason for 
separation was “Completion of Required Active Service.”

According to the AFCCA Opinion of the Court dated 6 September 
2013, on 5 January 2012, the United States Court of Appeals for 
the Armed Forces (CAAF) set aside the 3 February 2011, AFCCA 
decision to affirm the guilty finding with respect to Charge I, 
the false official statement charge, because the applicant and 
her counsel were not properly served with the staff judge 
advocate recommendation and afforded an opportunity to respond.

On 21 March 2012, the AFCCA again approved a sentence of “no 
punishment.” On 22 March 2013, the CAAF again set aside the 
AFCCA's decision and returned the case to the Judge Advocate 
General of the Air Force for submission to the convening 
authority.  The convening authority rescinded the 21 March 
2012 action and substituted a new action approving “the findings 
of guilty as to Charge I and the two specifications for which a 
finding of guilty was adjudged by the trial court.” On 
6 September 2013, AFCCA affirmed the findings and sentence.



AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request to set 
aside her GCM conviction, as it pertains to Charge I, making a 
false official statement, and its specifications.  In accordance 
with 10 USC § l552 (f) (2), the Board does not have the 
authority to set aside the applicant's conviction.  
Nevertheless, the Board may take “action on the sentence of a 
court-martial for purposes of clemency.”

The complete JAJM evaluation is at Exhibit C.

ARPC/DPTS recommends denial of the applicant’s request to amend 
her DD Form 214 to reflect the periods she was confined to 
prison and while she was on appellate leave.  The applicant was 
confined [examiner’s note: confinement here includes time 
actually in prison plus time spent on MSR] during the whole 
period from 12 March 2010 through 2 February 2011.  In 
accordance with AFI 36-2134, time spent in confinement 
[including time spent on MSR] is non-creditable service (i.e., 
lost time).    

While a DD Form 214 is not recommended, the applicant’s NGB Form 
22 could be amended to capture her appellate leave.  The 
applicant was issued an NGB Form 22 for the period 26 April 
2002 through 11 September 2011.  The closeout of this NGB Form 
22 would be amended to 6 September 2013 to accommodate the 
appellate leave. 

The complete DPTS evaluation is at Exhibit D.


?
APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

Due to the egregious injustice the court-martial left on her 
military career, family and good name, she respectfully requests 
the remaining federal convictions be dismissed.  When the 
larceny charge and other specifications were dismissed the 
government should have re-visited the remaining false official 
statement charge with the new understanding that there was no 
malicious intent to deceive the Air Force.

In further support of her requests, the applicant provides a 
personal statement, photographs, and various other documents 
related to her appeal.

Her complete response, with attachments, is at Exhibit F.


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 error or injustice to warrant 
setting aside Charge I and its specifications.  We note this 
Board is without authority to reverse, set aside, or otherwise 
expunge a court-martial conviction.  Therefore, no action is 
required on this portion of her application.

4.  Notwithstanding the above, sufficient relevant evidence has 
been presented to demonstrate the existence of an error or an 
injustice.  We note that AFPC/DPTS recommends denial of the 
applicant’s request to amend her DD Form 214.  However, the 
applicant’s punishment as to Charge II was set aside, therefore, 
as noted in GCM Order Number 29, dated 7 April 2011, all rights, 
privileges and property of which the applicant was deprived by 
virtue of the sentence should be restored.  According to the CMS 
Form 2098, dated in July 2010, the applicant was placed in 
confinement on 12 March 2010. According to her DD Form 2718, she 
was released from confinement on 14 December 2010.  
Additionally, the Clemency and Parole Board letter dated 
7 December 2010, reflects that she was placed on MSR effective 
14 December 2010.  As such we recommend the applicant’s records 
be corrected to reflect the confinement and MSR periods as 
periods of active duty.  Further, we believe the applicant’s 
record should be corrected to show that on 3 February 2011, the 
date after she was released from MSR until 6 September 2013, the 
date the AFCCA affirmed the findings and sentence, she was on 
appellate leave without pay and points.  Accordingly, in the 
interest of justice, we recommend the applicant’s record be 
corrected to reflect active duty credit for the period of  
12 March 2010 to 6 September 2013.  We believe correcting the 
records in this manner provides the applicant full and fitting 
relief.  In view of the above, we recommend the applicant's 
records be corrected to the extent indicated below.


THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air 
Force relating to APPLICANT, be corrected to show that:

	a.  She was not released from active duty on 12 March 2010, 
but on that date, she was continued on active duty until 
6 September 2013, at which time she was released from active 
duty. 

	b.  On 3 February 2011, she was placed on appellate review 
leave until 6 September 2013, without pay and allowance, or 
leave accrual.


The following members of the Board considered AFBCMR Docket 
Number BC-2013-05042 in Executive Session on 12 November 
2014 and 20 April 2015, under the provisions of AFI 36-2603:

       , Panel Chair
       , Member
       , Member

All members voted to correct the record as recommended.  The 
following documentary pertaining to AFBCMR Docket Number BC-
2013-05042 was considered: 

    Exhibit A.  DD Form 149, dated 10 October 2013, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 27 May 2014.
    Exhibit D.  Letter, ARPC/DPTS, dated 3 July 2014, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 4 August 2014.
    Exhibit F.  Letter, Applicant, undated, w/atchs.