RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01975 COUNSEL: NONE HEARING DESIRED: NO ___________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to general. ___________________________________________________________________ APPLICANT CONTENDS THAT: He was informed that he had to wait 10 years before he could request his discharge to be upgraded. He needs to have his discharge upgraded in order to become eligible for Department of Veteran Affairs (DVA) benefits. While serving in the Air Force, he was charged with selling $300.00 worth of caffeine pills to a fellow airman; caffeine pills are not a scheduled substance, nor were they then. The pills were tested and determined to be a legal substance; however, since there was an open investigation, the Air Force charged him with fraud and larceny (because the $300.00 used by an undercover agent to purchase the pills had already been handed off from him to another airman). His civilian and military attorney agreed there was no criminal basis for what he did. He believes since his discharge was not dishonorable it should be upgraded. His father retired from the Air Force as a master sergeant. He would like to bring honor back to their family by having his discharge upgraded. In support of his request, the applicant provides a copy of DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States, a copy of VA Form 21-4138, Statement in Support of Claim, a copy of a letter from the DVA, and a personal statement. His complete submission, with attachments, is at Exhibit A. ___________________________________________________________________ STATEMENT OF FACTS: The applicant was tried by special court-martial on 7 Oct 80. He was charged with one charge and two specifications of attempting to sell a dangerous drug; one charge and two specifications for stealing; and an additional charge with one specification for reckless driving. The applicant pled not guilty to all charges and specifications. He waived his right to present his case to a panel of military members and, instead, asked to be tried by the military judge alone. The judge found him guilty of larceny and reckless driving; however, he was found not guilty of stealing. The applicant was sentenced to be discharged from the service with a bad conduct discharge; to be confined at hard labor for three months; to forfeit $125.00 per month for six months; and to be reduced to airman basic. The court-martial approving authority subsequently approved his sentence on 1 Sep 81. The applicant received an under other than honorable conditions (UOTHC) discharge on 1 Oct 81. He served 3 years, 5 months, and 2 days. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. A copy of the FBI report was forwarded to the applicant for review and comment within 30 days on 4 Nov 10. As of this date, no response has been received by this office. A request for information pertaining to his post-service activities was forwarded to the applicant on 4 Nov 10 for response within 30 days. As of this date, no response has been received by this office. ___________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant’s record shows he was afforded all of the procedural rights offered by the court-martial and appellate process. The applicant provided testimony under oath during the presentencing proceedings stating he knew he was doing something wrongful and that he bore no ill will towards the Air Force for his predicament; however, he felt he still had something to offer the military. The military judge evaluated all evidence and determined the appropriate punishment for the offense committed was a BCD; 3 months confinement at hard labor; reduction to airman basic; and forfeiture of $125.00 for six months. The applicant requested clemency consideration after the trial but before the final action on the case. The applicant’s case was automatically referred to the Air Force Court of Military Review for review; however, the court affirmed the finding and sentence. JAJM believes granting clemency in this case would be unfair to those individuals who honorably served their country while in uniform. In addition, Congress’ intention setting up the Veterans’ Benefits Program was to express thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy action and suffering financial hardships. The Secretary of Veterans Affairs bar all rights of a veteran when the veteran was discharged or dismissed by reason of the sentence of a general court-marital. If the veterans benefits program is to have real value this should be enforced otherwise it would be offensive to all those who served honorably. The AFLOA/JAJM complete evaluation is at Exhibit D. ___________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant responded that the charges against him seem to be a little harsh since the pills he was selling were legal and he did not make a profit on them, and the reckless driving charge was for not stopping his vehicle when a sergeant was yelling at him to stop. He states the Article 15 for lewd and lascivious acts was a complete farce fabricated by an airman and his roommate who were having a homosexual affair and were attempting to solicit him to join them. When the airman and his friend were caught possessing marijuana, they began pointing fingers to him stating he was a drug dealer and gay. Bottomline, he was mistreated by being charged and convicted. He would like to clear his name for his father’s sake as well his own. He believes his almost 4 years of service deserves an upgrade to general. The applicant’s complete submission, with attachment, is at Exhibit F. ___________________________________________________________________ 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 an error or an injustice. We are not persuaded by the evidence presented that the discharge characterization received by the applicant should be changed. The applicant's discharge was based on his trial and conviction by a special court-martial. While the law precludes us 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, there is nothing in the available record that would cause us to disturb the actions of the reviewing officials in this case. Therefore, the applicant’s request 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 members of the Board considered this application in Executive Session on 6 Jan 11, under the provisions of AFI 36- 2603: , Vice Chair , Member , Member The following documentary evidence for Docket Number BC-2010-01975 was considered: Exhibit A. DD Form 149, dated 25 May 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFLOA/JAJM, dated 4 Aug 10. Exhibit E. Letter, SAF/MRBR, dated 3 Sep 10. Exhibit F. Letter, Applicant, dated 25 Sep 10. Exhibit G. Letter, AFBCMR, dated 4 Nov 10. Vice Chair