RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00348
COUNSEL: NONE
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
He be restored to his previous rank of technical sergeant
(TSgt/E-6).
APPLICANT CONTENDS THAT:
During his court-martial, there was key information not allowed
by the judge and statements by trial council which should not
have been admitted.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on
4 Dec 89.
Under General Court-Martial Order No. 20, dated 17 Feb 11, the
applicant was found guilty of wrongfully and knowingly
possessing a visual depiction of a minor engaged in sexual
explicit conduct, in violation of Article 134 of the Uniform
Code of Military Justice (UCMJ).
On 26 May 11, Under Special Order AC-010557, the Secretary of
the Air Force determined that the applicant had served
satisfactorily in the grade of staff sergeant (E-5) and ordered
the applicant advanced to said grade on the retired list on
17 Feb 20.
On 1 Aug 11, the applicant retired in the grade of senior airman
(E-4), and was credited with 21 years, 5 months, and 14 days of
active service.
The remaining relevant facts pertaining to this application are
contained in the memoranda prepared by the Air Force offices of
primary responsibility (OPR), which are attached at Exhibits C
and D.
AIR FORCE EVALUATION:
AFPC/DPSOE recommends denial of the applicants request to
upgrade his grade, indicating there is no evidence of an error
or an injustice. The applicant was court-martialed for
wrongfully and knowingly possessing a visual depiction of a
minor engaged in sexually explicit conduct. For this, he was
sentenced to 90 days of confinement, reduced in grade to senior
airman (E-4), and received a reprimand. The applicant retired
in the grade of E-4. AFLOA/JAJM found no error in the
processing of the court-martial, and recommends no relief be
granted. Therefore, the applicants rank should not be
restored.
A complete copy of the AFPC/DPSOE evaluation is at Exhibit C.
AFLOA/JAJM recommends denial indicating there is no evidence of
an error or an injustice. The applicant is asking that the
criminal charges for which he was convicted be removed from his
record. In accordance with 10 USC §1552(f)(2), the Board does
not have the statutory authority to remove criminal charges from
the applicants record. However, it does have the authority to
make a recommendation with respect to the rank upgrade. The
maximum sentence of the crime of which the applicant was found
guilty was ten years confinement, reduction to the grade of
airman basic (E-1), and forfeitures of all pay and allowances.
After review of the case, the findings and sentence were found
to be supported in law. The applicant claims there was key
information which the military judge did not admit into
evidence and there were statements made by the Governments
expert witness that should not have been admitted. Based upon
our review, the military judge did not abuse his discretion with
respect to evidentiary rulings.
A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
Copies of the Air Force evaluations were forwarded to the
applicant on 25 Aug 14 for review and comment within 30 days
(Exhibit E). 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 timely filed.
3. Insufficient relevant evidence has been presented to
demonstrate the existence of an error or injustice. We took
notice of the applicants complete submission in judging the
merits of the case; however, we agree with the opinions and
recommendations of the Air Force offices of primary
responsibility (OPR) and adopt their rationale as the basis for
our conclusion the applicant has not been the victim of an error
of injustice. Therefore, in the absence of evidence to the
contrary, we find no basis to recommend granting the requested
relief.
4. The applicants 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-2014-00348 in Executive Session on 22 Jan 15 under the
provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2014-00348 was considered:
Exhibit A. DD Form 149, dated 23 Jan 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFPC/DPSOE, dated 3 Mar 14.
Exhibit D. Memorandum, AFLOA/JAJM, dated 30 Jul 14.
Exhibit E. Letter, SAF/MRBR, dated 25 Aug 14.
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