RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-00850

					COUNSEL:  NONE

					HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

1.  His promotion to the grade of major be reinstated with a 
retroactive Date of Rank (DOR) and he receive the associated pay, 
allowances, leave and entitlements as a result of this promotion. 

2.  His Intermediate Developmental Education (IDE) select status 
(Air Command and Staff College (ACSC)) be reinstated.

3.  All derogatory information be removed from all his personnel 
files, to include, Office of Special Investigations, Federal 
Bureau of Investigations, state and federal law enforcement 
databases.  

4.  In the alternate, the applicant requests that he be retired in 
his current grade. 


APPLICANT CONTENDS THAT:

On 4 December 2007, he was convicted at a general court-martial. 

On 14 August 2013, the Court of Appeals for the Armed Forces 
(CAAF) reversed the decision of the Air Force Court of Criminal 
Appeals (AFCCA) and set-aside the finding of guilty and the 
sentence in his case.  

On 10 October 2013, the CAAF denied the government’s motion for 
reconsideration.  

On 16 January 2014, the convening authority removed him from 
appellate leave status and restored him to active duty.  Based on 
these decisions and actions, he requests that he be retroactively 
promoted as though the conviction never occurred.

In support of his requests, the applicant provides a personal 
statement, copies of court orders, memorandums, AF IMT 709, 
Promotion Recommendation and various other documents associated 
with his requests. 

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


STATEMENT OF FACTS:

The applicant was progressively promoted to the grade of captain 
in the Regular Air Force.  He was subsequently selected for 
promotion to the grade of major with a projected date of promotion 
of 1 April 2008.

On 4 December 2007, the applicant was tried at a General Court-
Martial for the following offenses in violation of Article 134, 
Uniform Code of Military Justice (UCMJ):

      Specification 1:  On divers occasions, from on or about 
30 November 2000 to on or about 10 October 2001, the applicant 
committed indecent acts upon the body of a female under 16 years 
of age, not his wife, by touching her private parts with his 
hands, and by touching her private parts with a vibrator, with 
intent to gratify his sexual desires.

      Specification 2:  On divers occasions, from on or about 
30 January 2006 to on or about 30 April 2006, the applicant 
committed indecent acts upon the body of a another female under 
16 years of age, not his wife, by touching her private parts with 
his hands, grabbing her hand and forcing her to touch his penis, 
by touching her leg with his penis, and by licking her private 
parts with his tongue, with intent to gratify his sexual desires.

The applicant pled not guilty but was found guilty of all the 
charges.  He was sentenced to confinement for 10 years, forfeiture 
of all pay and allowances and a dismissal.  However, the 
applicant’s confinement period was reduced to 4 years.

According to AF Form 4383, dated 25 March 2008, a promotion 
propriety action was initiated because the applicant failed to 
exhibit exemplary conduct and or there was cause to believe he was 
not mentally, physically, morally, or professionally qualified to 
perform the duties of the next higher grade.  The commander noted 
the applicant was found guilty of committing indecent acts upon 
the bodies of two females under 16 years of age and therefore, 
based on the totality of the evidence, was unsuited for promotion 
to the grade of major and recommended his removal from the 
promotion list.  The applicant acknowledged receipt of the 
promotion propriety action, consulted counsel and submitted 
written matter in his own behalf.  On 1 April 2008, the Judge 
Advocate (JA) reviewed the promotion propriety action and 
determined it to be legally sufficient.  On 2 April 2008, the 
commander recommended the applicant’s name be removed from the 
promotion list.  On 20 May 2008, both the Judge Advocate General 
and General Counsel offices reviewed the promotion propriety 
action and determined it to be legally sufficient.  On 19 June 
2008, the Secretary of the Air Force (SECAF) approved the removal 
action.   

On 1 July 2008, the finding of guilty of Specification 1 of the 
Charge was set aside, and Specification 1 of the Charge was 
dismissed.   The convening authority approved the applicant’s 
sentence to confinement for four years and a dismissal and 
directed he take involuntary leave pursuant to Article 76(a) UCMJ. 

On 14 August 2013, the CAAF set-aside the United States Court of 
Criminal Appeals (AFCCA) decision to affirm the guilty finding 
with respect to the Charge and Specification 2, committing 
indecent acts upon the body of female under the age of 16, because 
the specification failed to state an offense and the government 
failed to provide notice of the missing element during its case-
in-chief.  The CAAF remanded the case to the Judge Advocate 
General for the Air Force for further proceedings and authorized a 
rehearing on the affected charge and specification.

In a memorandum  dated 16 January 2014, the 2nd AF/CC notified the 
applicant that the CAAF set aside the findings and sentence in his 
case and that he was no longer on required excess leave and would 
be restored to active duty.  

In accordance with AFI 51-201, Administration of Military Justice, 
paragraph 9.38.5 states “If the accused’s sentence to a punitive 
separation is set-aside or disapproved upon appellate review, the 
accused is entitled to pay and allowances for the period of 
required excess leave, unless a rehearing or new trial is ordered 
and a punitive separation results from the rehearing.  


AIR FORCE EVALUATION:

AFPC/DPSOO recommends denial of the applicant’s request to 
reinstate his promotion to the grade of major with a retroactive 
DOR.  AFI 36-2501, Officer Promotions and Selective Continuation, 
states “commander’s question promotion when the preponderance of 
evidence shows the officer has not met the requirement for 
exemplary conduct set forth in Title 10 United States Code, 
section 8583, or is not mentally, physically, morally, or 
professionally qualified to perform the duties of the higher 
grade.”  Air Force policy also states that formal rules of 
evidence do not apply to a promotion propriety action.  All 
actions were reviewed by Air Force legal offices and were found to 
be legally sufficient to warrant the action taken.  

A complete copy of the AFPC/DPSOO evaluation, with attachment, is 
at Exhibit C.  

AFPC/DPSIM recommends denial of the applicant’s request for 
retroactive pay, allowances, leave and entitlements.  During the 
time the applicant was in confinement and on parole he earned no 
leave.  In addition, there is insufficient evidence that states he 
should have accrued leave days during 4 December 2007 to 
14 October 2010. The applicant has not provided evidence that 
states he would be reimbursed during his appellate review.  

A complete copy of the AFPC/DPSIM evaluation, with attachment, is 
at Exhibit D.

AFPC/DPAPFE recommends denial of the applicant’s request to 
reinstate his IDE select status.  The applicant’s window of 
eligibility expired; therefore, there is no need to reinstate his 
DE select status.  AFI 36-2301, Developmental Education, paragraph 
6.3.1, “Board-identified IDE “selects” will attend resident IDE 
during their eligibility window as long as their performance 
continues to meet the high standards that merited their selection 
originally.  An officer’s select eligibility window is based on 
the officer’s year group and DOR.  The applicant’s eligibility 
window closed in 2010.  

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

AFLOA/JAJM recommends denial of the applicant’s requests.  On 
24 May 2011, the AFCCA affirmed the approved findings and 
sentence.  On 21 October 2011, the CAAF vacated the decision and 
remanded the case back to AFCCA.  On 3 February 2012, AFCCA again 
affirmed the findings and sentence.  On 10 July 2012, CAAF 
reversed AFCCA’s decision and returned the case for further 
consideration.  On 14 March 2013, AFCCA, again approved the 
findings and sentence.  

On 14 August 2013, CAAF reversed AFCCA’s decision and set-aside 
the findings and sentence and a rehearing was authorized.  On 
25 March 2014, one specification and one charge were preferred 
against the applicant for allegedly committing indecent acts upon 
a female under the age of 16, in violation of Article 134, UCMJ.  
On 17 June 2014, the case was referred to a general court-martial.  
On 27 March 2015, the applicant was found guilty of the charge and 
its specification and sentenced to three years confinement and a 
dismissal.  Given that the applicant has been found guilty at his 
re-hearing and sentenced to a dismissal and confinement, this 
application is moot.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Rules for Court Martial provides that: “[rehearing] procedure 
shall be the same as in the original trial.”  Therefore, “the 
effect of ordering a rehearing is…to place the United States and 
the accused in the same position as they were at the beginning of 
the original trial.”  Therefore, he has not been placed in the 
same position as he was at the beginning of the original trial.  
The CAAF determined it was plain and obvious error for the 
government not to allege all the elements of the offense he was 
charged, which materially prejudiced his substantial rights and 
impaired his ability to defend himself.  

AFPC/DPSOO’s advisory opinion states the actions were legally 
sufficient; however, they are incorrect.  Specifically, AF Form 
4363, which states the reasons for the Promotion Propriety Action 
lists both charges and does not take into consideration that, at 
the time, one of the charges was dismissed with prejudice by the 
Convening Authority.  Therefore, the basis for which the action 
was taken was in error and renders the action legally 
insufficient.  The oversight in itself is reason to declare his 
removal from the promotion list invalid.  In addition, the 
Promotion Propriety Action is incomplete.

The preponderance of evidence DPSOO references in their 
recommendation is the very same evidence which was thoroughly 
reviewed by two commanders in his chain of command with the same 
results…they both refused to prefer charges.  At that point, the 
base legal office started to “shop around” until they were able to 
find an officer to do their bidding.  Interestingly enough, that 
officer turned out to be the wing inspector general, who worked 
for the wing commander.

The DPSIM advisory opinion only provides references to a current 
and/or final conviction, not a conviction which has been 
overturned and set-aside by a reviewing authority.  The advisory 
cites areas from AFMAN 65-116, V1, Defense Joint Military Pay 
System Active Component (DJMS-AC) FSO Procedures which are 
beneficial to support their recommendation, but do not apply to 
him and his specific situation.  

The AFLOA/JAJM advisory opinion only recites the dates of his case 
history and cannot dispute the fact where the guiding case law 
dictates he be placed in the same position as he was before the 
original trial.  His application is not moot and even by their 
suggestion insults, the authority given to the SECAF and Section 
1552, Title 10 United States Code to correct an error or remove an 
injustice.    

He accepts and adopts AFPC/DPAPFE’s rationale that he is outside 
his window of eligibility; therefore, reinstatement of his IDE 
select status is not possible.  Despite his innocence, he has 
suffered arduous punishment such as confinement and sex offender 
registration.  His family has endured enough pain and suffering 
from this nightmare for the past 10 years to last a lifetime.  If, 
after all his submission, the Board feels he has not provided 
sufficient, relevant evidence to favorably consider his requests, 
then in the alternative, he requests to be retired in his current 
grade.  He is currently eligible for retirement with over 25 years 
of dedicated, and in his humble opinion, honorable service to his 
country.  

In further support of his appeal, the applicant provides copies of 
excerpts from US v. Von Bergen; AFMAN 65-116 v1; AF IMT 709, 
Promotion Recommendation Form, Court-Martial Order, character 
reference letters, previous Record of Proceedings, and various 
other documents associated with his request.    

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


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 injustice to warrant relief.  The 
applicant argues that there was an error in law and believes he 
should have been restored to the position he was in prior to being 
sentenced by court martial or in the alternative be allowed to 
retired in the lower grade he held.  However we disagree with his 
interpretation of the law as a basis for relief and feel it is 
taken out context.  The applicant bases his request on the fact 
the CAAF set aside his convictions.  However, it is noted that the 
court martial was set aside based on legal error and he was 
eventually retried and was sentenced.  The conduct at issue in the 
original court martial and his subsequent conviction is still a 
matter of record.  Consequently, the Board finds no merit in his 
request to be restored to his original condition or to allow him 
to retire.    The Board notes the underlying basis for both the 
court martial and the promotion propriety action was the 
applicant’s illegal conduct and we find no merit in his argument 
that due to due to one of the charges being dropped, the basis for 
the promotion propriety action no longer exists.  In this respect, 
we note that AFI 36-2504 instructs commanders to initiate 
propriety of promotion action when there is cause to believe an 
officer is not mentally, physically, morally, or professionally 
qualified to perform the duties of the higher grade.  In our view, 
the egregious nature of the conduct of which the applicant has 
been subsequently convicted rises to a level that supports the 
commander acted within his discretionary authority to determine 
the applicant was not fit for promotion to the grade of major and 
to recommend to the Secretary the applicant’s name be removed from 
the promotion list.  We note the subsequent approval by the 
Secretary was based on a review of all of the facts of the case 
and the action was determined legally sufficient after legal 
reviews.  Given we find no merit in the applicant’s request for 
promotion, we therefore find no basis grant his requests for 
reinstatement of his IDE and ACSC select status.  While the 
applicant requests all derogatory information be removed from his 
personnel files, this Board is without authority to set aside, 
reverse, overturn, or otherwise expunge a court-martial conviction 
from an applicant’s record and the applicant has not provided 
sufficient evidence of any other documents erroneously filed in 
his personnel record.  Additionally, the applicant has referenced 
several BCMR cases (BC-2004-01344, BC-2006-01168, BC-2000-03241, 
BC-1998-00094, and BC-2002-01094) he believes support his request 
for relief.  However, we note that every case before this Board is 
considered on its own merit since the circumstances of each case 
are seldom identical.  We have reviewed the facts of the 
referenced cases and find the circumstances of the cases to be 
distinguishable and that no facts are provided which bolster the 
applicant’s request for relief.  The applicant’s numerous 
contentions are duly noted; however, in our view, the applicant 
has not provided substantial evidence which, in our opinion 
successfully refutes the assessment of his case by the Air Force 
Offices of Primary Responsibility (OPRs).  Therefore, we agree 
with the opinions and recommendations of the Air Force OPRs and 
adopt the rationale expressed as the primary basis for our 
decision the applicant has failed to sustain his burden of having 
suffered an injustice.  In view of the above and in the absence of 
evidence he was denied rights to which he was entitled, we find no 
basis to recommend granting any of the relief sought in this 
application.


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-2014-00850 in Executive Session on 14 Jul 15, under the 
provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2014-00850 was considered:

	Exhibit A.  DD Form 149, dated 24 February 2014, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFPC/DPSOO, dated 4 May 2014, w/atchs.
	Exhibit D.  Letter, AFPC/DPSIM, dated 19 June 2014, w/atch.
	Exhibit E.  Letter, AFPC/DPAPFE, dated 3 March 2015.
	Exhibit F.  Letter, AFLOA/JAJM, dated 4 June 2015.
	Exhibit G.  Letter, SAF/MRBR, dated 11 June 2015.