RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2009-00197 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: During wartime, he served his country in an outstanding manner. He paid his debt to society and has been a model citizen in his community. He needs this upgrade to assist him in obtaining help for his medical problems through the Department of Veterans Affairs. He believes he deserves a chance like any other veteran or will his service to his country go unnoticed. Applicant's complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 10 May 1971, the applicant contracted his initial enlistment in the Regular Air Force. He was progressively promoted to the grade of technical sergeant having assumed the grade effective and with a date of rank of 3 Oct 85. On 2 May 1985, he was tried by a general court-martial for 13 specifications of filing false claims against the United States government in violation of Article 132, Uniform Code of Military Justice (UCMJ). He pled guilty to 12 of the 13 specifications and was sentenced to a dishonorable discharge, confinement for 24 months, forfeiture of $500.00 pay per month for 24 months, reduction to the grade of airman first class and a fine in the amount of $3200.00. On 8 July 1985, the convening authority approved the sentence as adjudged. On 6 September 1985, the findings of guilty and sentence were affirmed by the Air Force Court of Military Review. On 20 November 1985, the United States Court of Military Appeals denied the applicant's petition for review of the conviction, therefore, the findings and sentence in the applicant's case became final and conclusive under the UCMJ. He was discharged on 22 May 1986. He served 10 years and 6 months and 27 days of total active service. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. On 9 July 2009, the Board staff requested the applicant provide documentation pertaining to his activities since leaving military service. He has not responded (Exhibit F). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends the requested relief be denied and states the mere fact that 24 years have passed since the applicant's court-martial does not erase his past criminal conduct or make his dishonorable discharge any less appropriate for the offenses he committed. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court over 24 years ago when the facts and circumstances were fresh. A dishonorable discharge was and continues to be part of a proper sentence and properly characterizes his service. The complete AFLOA/JAJM evaluation is at Exhibit D. _________________________________________________________________ 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, there has been no response 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 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 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 also find no evidence which indicates the applicant’s service characterization, which had its basis in his conviction by a general court-martial and was a part of a pre-trial agreement and 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 applicant's overall quality of service, the general court-martial conviction which precipitated the discharge, and the seriousness of the offense for which convicted. Based on the evidence of record, we cannot conclude that clemency is warranted. There being insufficient evidence to the contrary, the Board finds no compelling basis to recommend granting the relief sought. _________________________________________________________________ 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 AFBCMR Docket Number BC-2009-00197 in Executive Session on 24 September 2009 under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Jan 09, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Investigative Report. Exhibit D. Letter, AFLOA/JAJM, dated 23 Apr 09. Exhibit E. Letter, SAF/MRBR, dated 8 May 09. Exhibit F. Letter, AFBCMR, dated 9 Jul 09. Panel Chair