RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-00440 INDEX CODE: 110.02 XXXXXXX COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to general (under honorable conditions). ________________________________________________________________ THE APPLICANT CONTENDS THAT: His BCD was inequitable because it was based on an isolated incident in 95 months of exemplary service. The applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was discharged by General Court-Martial Order #11, on 24 Sep 93, with a reason for separation of conviction by court-martial (other than desertion), with service characterized as bad conduct. He was credited with 8 years, 7 months, and 22 days of active duty service (excluding lost time from 13 Jul through 27 Sep 92 due to confinement). The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force. ________________________________________________________________ THE AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, stating, in part, that upgrading the applicant’s BCD is not appropriate. The applicant does not claim he is innocent of the charge against him nor does he claim any procedural fault with the court. The record shows he was afforded all of the procedural rights offered by the court-martial and appellate process. The applicant pled not guilty to wrongful use of cocaine and was able to have a panel of officer members decide whether the evidence showed, beyond a reasonable doubt, that he had committed the offense. The members heard testimony from numerous witnesses and were given all the information regarding the urinalysis test. They heard about the procedures used and the results of the test. The members were able to weigh that information against the evidence presented by the defense, including the defense’s theory of the possibility of unknowing ingestion. The members were able to evaluate that evidence and found the applicant guilty of the charge and specification. During the pre-sentencing phase of the trial, the members heard evidence in aggravation, as well as extenuating or mitigating evidence from the applicant. The applicant provided an unsworn statement in which he asked the members to take into account his exceptional military record and allow him to continue to serve in the Air Force. The members evaluated the evidence and determined that the appropriate punishment for the offense committed by the applicant was a BCD, three months confinement, forfeiture of $400.00 pay per month for three months, and reduction to airman basic. After the trial, the applicant had the chance to present a request for clemency to the convening authority before final action on the case. Since the applicant received a punitive discharge, his case was automatically referred to the Air Force Court of Military Review. An appellate defense counsel was appointed to represent him. After the Air Force Court affirmed the finding and sentence, the applicant had the chance to petition the United States Court of Military Appeals. There is no evidence of effort or injustice in the process of the applicant’s court-martial or appeal. While clemency may be granted, the applicant has not provided any justification for his request, and clemency is not warranted. His submission does not include a letter or document to show rehabilitation since the time of his court-martial. He claims 95 months of exemplary service as the reason to grant clemency; however, the Record of Trial of the applicant’s court- martial includes copies of three Records of Individual Counseling (RICs) and five Letters of Reprimand (LORs) issued to the applicant from about April 1990 to April 1991 for various offenses. The complete AFLOA/JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 4 Jun 10 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 took notice of the applicant's complete submission in judging the merits of the case. The evidence of record reflects the applicant was convicted by general court-martial for one specification of wrongful use of cocaine resulting in a bad conduct discharge. No evidence has been presented which would lead us to believe that the applicant’s service characterization was improper. We note the lack of post service documentation and in view of the seriousness of the offense committed during the period of service under review; we are not persuaded that an upgrade of the characterization of his discharge is warranted on the basis of clemency. Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought in this application. ________________________________________________________________ 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-2010-00440 in Executive Session on 21 September 2010, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 25 Jan 10. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 7 Apr 10. Exhibit D. Letter, SAF/MRBR, dated 4 Jun 10. Panel Chair