RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00952 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her dishonorable discharge (BCD) be upgraded to a general or bad conduct discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: Her discharge was unjust due to entrapment. It has been 30 years since her conviction. She blames her behavior that led to her conviction on the foolishness of youth. In support of her appeal, she provides a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States. A copy of the applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 2 January 1979, the applicant enlisted in the Regular Air Force in the grade of airman basic (E-1). She was progressively promoted to the grade of senior airman (E-3) effective and with a date of rank of 1 September 1981. On 21 April 1982, the applicant was tried by general court- martial. She was charged with 16 specifications of violating a lawful general regulation by selling methaqualone (also known as Quaaludes) in violation of Article 92, Uniform Code of Military Justice (UCMJ); two specifications of wrongful transfer of cocaine and two specifications of use of marijuana, all in violation of Article 134 UCMJ; one specification of attempting to violate a lawful general regulation by selling methaqualone, in violation of Article 80, UCMJ; and one specification of larceny, in violation of Article 121, UCMJ. The applicant pled not guilty to the charge and specification of larceny, but pled guilty to the remaining charges and specifications. She was sentenced by a military judge to a dishonorable discharge, confinement (at hard labor) for five years, forfeiture of all pay and allowances, and reduction to airman basic. On 7 July 1982, the convening authority approved the findings and sentence as adjudged. The Air Force Court of Military Review affirmed the findings and sentence on 26 August 1982. The applicant petitioned the United States Court of Military Appeals for review of her conviction, but her request was denied on 7 December 1982, making the findings and sentence in her case final and conclusive under the UCMJ. The applicant was separated with a dishonorable discharge on 18 April 1983 with a separation code of JJD (conviction by court- martial - others) and a reenlistment code of 2M (discharged under general or other-than-honorable conditions). She served 3 years, 3 months, and 14 days on active duty. The applicant’s time lost was from 16 February 1982 through 21 February 1982, and 21 April 1982 through 18 April 1983 due to military confinement. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report. On 18 June 2009, the applicant was given an opportunity to submit comments about her post service activities and the FBI Report (Exhibit E). As of this date, this office has received no response. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denying the applicant’s request to upgrade her discharge. JAJM states that under Title 10 United States Code (USC), Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Corrections of Military Record’s (AFBCMR) ability to correct records related to courts-martial is limited. Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ. Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set- aside, or otherwise expunge a courts-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). JAJM states the applicant has identified no error or injustice related to her prosecution or the sentence. Prior to the trial, she entered into a pretrial agreement, in which she agreed to plead guilty to all of the charges and specifications (except larceny which was to be dismissed) in exchange for the convening authority agreeing to not approve a sentence that exceeded a dishonorable discharge, 90 months confinement, and forfeiture of pay and allowances. The applicant pled guilty at trial to the charges and specifications as was agreed to in the pretrial agreement. The imposed sentence was well below the maximum possible sentence of a dishonorable discharge, confinement for 64 years, total forfeiture of pay and allowances, and reduction to the grade of E-1, and even below the agreed limit on confinement in the pretrial agreement. JAJM states that while clemency may be granted under Section 1552(f)(2), the applicant provides no justification for her request; therefore, clemency is not warranted in this case. The applicant has not submitted with her application even so much as a character statement attesting to any improvement in her behavior in the intervening years. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. 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 8 May 2009 for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ 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 probable error or injustice. The applicant’s discharge had its basis in her trial and conviction by a court-martial and she has provided no evidence showing that the sentence exceeded the maximum punishment allowable based on the offense of which she was convicted. We are constrained to note that, in accordance with Title 10, USC, 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. There is nothing in the evidence provided which would lead us to believe that a change to the actions of any of the reviewing officials is warranted. Furthermore, we do not find clemency is appropriate in this case since the applicant has not provided any evidence concerning her post-service activities. Therefore, the applicant’s request is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 this application in Executive Session on 18 August 2009, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2009-00952: Exhibit A. DD Form 149, dated 22 Feb 09, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 28 Apr 09. Exhibit D. Letter, SAF/MRBR, dated 8 May 09. Exhibit E. Letter, AFBCMR, dated 18 Jun 09, w/atchs. Panel Chair