RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-02051
COUNSEL: JOHN E. FITZGIBBONS
HEARING DESIRED: YES
APPLICANT REQUESTS THAT:
His court-martial conviction be set aside and his bad conduct
discharge be upgraded to honorable.
APPLICANT CONTENDS THAT:
The only reason he testified at his court-martial, was to show the
members that the Air Force entrapped him. On the night in
question, a female service member came to his dorm room with her
uncle, who turned out to be an undercover Air Force Special Agent.
His defense counsel failed to request the entrapment instruction.
There was ample evidence to show the suggestion/inducement
originated with the uncle and he had no predisposition to commit
the offense. Though he raised this issue in his testimony, his
Air Force attorney failed in his duty to request the entrapment
instruction. Even if not requested, the Military Judge had a
duty, sue ponte, to give the instruction. This error also was not
raised by his appellate defense counsel. It was only discovered
after the applicant hired his current attorney to review the case.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
On 4 Mar 93, the applicant entered the Regular Air Force.
On 22 Apr 94, he was tried by court-martial and found guilty of
one charge and one specification in violation of Article 80 of the
Uniform code of Military Justice (UCMJ) for wrongfully attempting
to possess lysergic acid diethylamide (LSD). He was sentenced to a
bad conduct discharge, confinement for six months, forfeiture of
$300.00 per month for six months, and reduction to the grade of
airman basic.
On 9 Jun 94, the Staff Judge Advocate found the evidence legally
sufficient to support the guilty findings and recommended approval
of the adjudged sentence.
On 15 Jul 94, the convening authority approved the findings and
sentence as adjudged.
On 18 Jul 96, General Court-Martial Order No. 230 set forth his
bad conduct discharge, confinement for six months, forfeiture of
$300.00 per month for six months and reduction to airman basic as
adjudged on 22 Apr 94.
On 1 Aug 96, the applicant received a bad conduct discharge and
was credited with 2 years, 11 months and 16 days of active
service.
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial indicating there is no evidence of an
error or an injustice. The punishment adjudged by a panel of
members and approved by the convening authority was within the
range of permissible punishments. The applicant was afforded all
his appellate rights. In accordance with 10 USC 1552(f), the
Board has no authority to overturn the court-martial conviction
but may only on the basis of clemency, correct the actions taken
by the reviewing authorities, i.e., the sentence. The applicant
did not submit anything in clemency, but rather argues that an
entrapment defense should have been raised at his trial. The
applicants arguments are not proper arguments for a decision by
this board, as this board cannot overturn convictions, they can
only grant relief in the form of clemency. The arguments made by
the applicant were appropriate arguments for the appellate courts.
The applicant had appellate defense counsel and the courts fully
reviewed the applicants case.
The complete 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 20 Jan 15 for review and comment within 30 days (Exhibit D).
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 opinion and
recommendation of the Air Force office of primary responsibility
(OPR) and adopt its rationale as the basis for our conclusion the
applicant has not been the victim of an error of injustice. In
the interest of justice, we considered upgrading the discharge
based on clemency; however, we do not find the evidence presented
is sufficient to overcome the misconduct that formed the basis of
the discharge. 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 documentary evidence pertaining AFBCMR Docket Number
BC-2014-02051 was considered:
Exhibit A. DD Form 149, dated 12 May 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFLOA/JAJM, dated 14 Jan 15.
Exhibit D. Letter, SAF/MRBR, dated 20 Jan 15.
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