RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-01049 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to honorable. _________________________________________________________________ APPLICANT CONTENDS THAT: He was not provided an opportunity for rehabilitation and was kicked out of the Air Force after nine years of honorable service. He has turned his life around and would like the BCD removed from his records. In support of the appeal, the applicant provides two certificates of completion. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force as an airman basic on 17 Apr 82, for a term of four years. On 7 Jun 82, the applicant was tried by general court-martial with one specification of wrongfully using cocaine, and one specification of wrongfully using marijuana in violation of Article 112, Uniform Code of Military Justice (UCMJ). The applicant pled and was found guilty of both charges and specifications by a military judge. He was sentenced to a BCD, confinement for 10 months, forfeiture of $200.00 pay per month for 10 months, and reduction to the grade of airman basic (E-1). On 18 Feb 83, the Air Force Court of Military Review affirmed the findings and approved the sentence as adjudged. The applicant petitioned the United States Court of Military Appeals for review of the conviction, but it was denied on 21 Jan 93. This made the findings and sentence in the applicant’s case final and conclusive under the UCMJ. On 8 Mar 93, the applicant’s discharge was executed. He served a total of 9 years, 10 months, and 8 days of active service. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states, in part, the applicant did not identify an error or injustice related to his prosecution or the sentence. An examination of the record of trial reveals no error in the processing of the court-martial. Prior to the trial, the applicant entered into a pretrial agreement. The agreement specified the applicant agreed to plead guilty to the charges and specifications, in exchange for which the convening authority agreed not to approve a sentence that exceeded a BCD, 10 months confinement, forfeiture of $250.00 pay per month for 10 months, and reduction to E-1. While clemency may be granted under Title 10 U.S.C. 1552(f)-(2), the applicant provided very little justification for his request and clemency is not warranted in this case. The applicant’s certificates of accomplishment provide scant support for action by the Board in light of the seriousness of the offenses he committed. The mere fact the applicant says he feels he should have received a chance at rehabilitation does not erase his past criminal conduct, does not make his BCD any less appropriate for the offenses he committed and certainly does not weigh in favor of Board action now to undo that part of the punishment. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority almost seven years ago when the facts and circumstances were fresh. A BCD was and continues to be part of a proper sentence and properly characterizes his service. Clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ Benefit Program was to express thanks for veterans’ personal sacrifices, separations from their family, facing hostile enemy action and suffering financial hardships. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. This makes sense if the benefit program is to have any real value. It would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime such as the applicant’s while on active duty. The complete 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 28 Aug 09, for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). A request for post-service documentation was mailed to the applicant on 20 Oct 09, for response within 30 days, and to date no reply has been received (Exhibit E). _________________________________________________________________ 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 took notice of the applicant's 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 that the applicant has not been the victim of an error or injustice. We find no evidence which indicates the applicant’s BCD, which had its basis in his conviction by a general court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the UCMJ. While we are precluded by law from reversing a court-martial conviction, we are authorized to correct the records to reflect actions taken by reviewing officials and to take action on the sentence of a military court based on clemency. However, because of the limited documentation concerning his activities since leaving the service, we are not inclined to recommend upgrading his discharge based on clemency at this time. In view of the foregoing, and in the absence of sufficient evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application. _________________________________________________________________ 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 Docket Number BC- 2009-01049 in Executive Session on 3 Dec 09, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 Jun 09, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 4 Aug 09. Exhibit D. Letter, SAF/MRBR, dated 28 Aug 09. Exhibit E. Letter, AFBCMR, dated 20 Oct 09, w/atch. Panel Chair