RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-00876
COUNSEL: NONE
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
His indecent assault and unlawful entry charges be removed from his records.
His bad conduct discharge (BCD) be upgraded to general (under honorable conditions).
APPLICANT CONTENDS THAT:
His conviction was unjust because at that time he was a young immature kid that made a bad decision. The stigma of registering as a sex offender since the conviction is unwarranted and his life has been severally impacted. It has been difficult for him to secure both a job and housing, resulting in his inability to secure a future for himself and his family. In the interest of justice his request should be considered.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicants military personnel records indicate he enlisted in the Regular Air Force on 05 July 2001.
On 1 October 2003, the applicant plead not guilty and was found guilty at a Special Courts-martial of one specification of unlawfully entering an on base house, one specification of committing an indecent assault, and one specification of wrongfully entering a bathroom without consent, all in violation of Articles 130 and Article 134, respectively, of the Uniform Code of Military Justice (UCMJ). He was sentenced to a BCD, reduction in grade to airman basic (E-1), and confinement for 90 days.
On 6 May 2006, he was furnished a BCD upon completion of appellate review.
On 29 June 2007, the applicant was furnished a BCD. He was credited with 5 years, 11 months, and 25 days of total active service.
An undated 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 described in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. The applicant is asking that the criminal charges for which he was convicted be removed from his record. In accordance with 10 USC § 1552, the Board may take action on the sentence of a court-martial for purposes of clemency. That is, the Board does not have the statutory authority to remove criminal charges from the applicants record. Thus, the Board cannot provide the applicant the relief he is seeking with respect to the removal of charges, but it does have the authority to make a recommendation with respect to the discharge upgrade request.
On 22 November 2005, the United States Air Force Court of Criminal Appeal determined that the approved findings and sentence were correct in law and fact. On 29 March 2006, the Court of Appeals for the Armed Forces denied the applicants petition for grant of review. On 8 May 2006, the convening authority ordered the BCD to be executed.
After careful review of the records and the applicants submission, we do not believe that there is any error or injustice which would warrant changing the applicants court-martial sentence.
A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 1 October 2014 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D).
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 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 applicants 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 applicants 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 applicants 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.
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-2014-00876 in Executive Session on 6 January 2015, under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2014-00876 was considered:
Exhibit A. DD Form 149, dated 25 February 2014, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 2 April 2014.
Exhibit D. Letter, SAF/MRBR, dated 1 October 2014.
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