RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 	DOCKET NUMBER: BC-2014-00181

					COUNSEL:  NONE

		HEARING DESIRED:  YES 


APPLICANT REQUESTS THAT:

His official records be corrected to reflect the following changes 
on his DD Form 214, Report of Separation from Active Duty: 

1.	Upgrade his dismissal under general court martial to honorable.

2.	Change his Separation Program Designator (SPD) Code of “JJD” 
(court martial – other).

3.	Change his Reenlistment Eligibility (RE) code of “2M” (Serving 
sentence or suspended CM sentence; or separated while serving 
or suspended CM sentence).


APPLICANT CONTENDS THAT:

The military judge would not allow key witness testimony that was 
vital to his defense.  He believes the witness testimony would 
have impeached, or discredited, the government’s only witness 
against him--inferring a more favorable court martial decision for 
the applicant.  In support of his request, the applicant submits 
several character reference letters from peers and physicians in 
supervisory positions.

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


STATEMENT OF FACTS:

On 11 Jul 93, the applicant initially entered the Regular Air 
Force.

According to documentation provided by the applicant, on 6 March 
07 charges of rape, conduct unbecoming an officer and a gentlemen, 
and adultery were preferred against him. 

On 2 Jul 10, the applicant was dismissed from the Air Force, with 
uncharacterized service and a narrative reason for separation of 
Court Martial, and was credited with 14 years, 6 months, and 20 
days of active service.   

On 12 May 14, the applicant provided a copy of his FBI arrest 
record in response to a request for post-service information 
(Exhibit H).

The remaining relevant facts pertaining to this application are 
contained in the memorandums prepared by the Air Force offices of 
primary responsibility (OPR), which are attached at Exhibits C, D, 
and E.    


AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, indicating there is no evidence of 
an error or an injustice.  The applicant was tried by a general 
court-martial and found guilty of rape and conduct unbecoming an 
officer and a gentlemen for engaging in an inappropriate 
relationship and wrongfully having sexual intercourse with a woman 
not his wife, in violation of Articles 120, 133, and 134 of the 
Uniform Code of Military Justice (UCMJ), respectively.  He was 
sentenced to dismissal and three years of confinement.  The 
findings and sentence were upheld by the Air Force Court of 
Criminal Appeals (AFCCA), and the Court of Appeals of the Armed 
Forces denied his petition for review.  While he argues the 
military judge erred when he denied the defense’s motion to admit 
prior relationship evidence, he made this same argument in his 
appeal to AFCCA who found the trial judge did not abuse his 
discretion in excluding this evidence.  During the court martial 
proceedings, the judge acted within his authority to not allow the 
witness testimony.  

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

AFPC/DPSOR recommends denial, indicating there is no evidence of 
an error or an injustice.  In accordance with AFI 36-3207, 
Separating Commissioned Officers, character of discharge doesn't 
apply to officers dismissed by court-martial or dropped from the 
rolls of the Air Force.  Therefore, the type of separation, 
character of service, and SPD code are correct as indicated on the 
applicant's DD Form 214.  In addition, the RE code reflected on 
the applicant’s DD Form 214 is incorrect.  In accordance with AFI 
36-3202, Separation Documents, there are no RE codes for officers 
who are separated from the service.  This is a minor error that 
has no bearing on the case and can be administratively resolved 
upon completion of the Board’s findings.

A complete copy of the AFPC/DPSOR evaluation is at Exhibit D.
?
AFPC/DPSOR recommends the applicant’s RE code be administratively 
corrected to reflect “Not Applicable,” or “NA.”  The applicant's 
DD Form 214, reflects an erroneous RE code of "2M."  An RE code 
determines an enlisted member's eligibility to return to service; 
however, commissioned officers are not given RE codes.  Therefore, 
the applicant’s DD Form 214 should be administratively corrected 
to read "Not Applicable" or "NA."  

A complete copy of the AFPC/DPSOR evaluation is at Exhibit E.


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 28 Jul 14 for review and comment within 30 days 
(Exhibit F).  As of this date, no response has been received by 
this office.


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, we do not find the 
evidence presented is sufficient for us to conclude that the 
applicant’s post-service activities warrant granting the relief 
sought.  Therefore, in the absence of evidence to the contrary, we 
find no basis to recommend granting the requested relief.

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.


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.


The following members of the Board considered AFBCMR Docket Number 
BC-2014-00181 in Executive Session on 21 Nov 14 under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 9 Jan 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 10 Feb 14.
Exhibit D.  Memorandum, AFPC/DPSOR, dated 19 Feb 14.
Exhibit E.  Memorandum, AFPC/DPSOR, dated 4 Jun 14.
Exhibit F.  Letter, SAF/MRBR, dated 28 Jul 14, w/atchs.
Exhibit G.  Letter, SAF/MRBR, undated. 
Exhibit H.  Letter, Applicant, dated 12 May 14, w/atchs.