RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03277 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: He was in the military for eight years with no prior offenses and no evidence of marijuana use. The applicant does not provide any evidence in support of his appeal. A copy of the applicant’s complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 7 September 1987, the applicant, then a staff sergeant (E-5), was tried at a general court-martial for one specification of wrongfully using cocaine on diverse occasions in violation of Article 112a, Uniform Code of Military justice (UCMJ). Pursuant to pretrial agreement, the applicant pled guilty to the charge and its specification and was sentenced by a panel of officers to a bad conduct discharge, confinement for 12 months, forfeiture of $150.00 pay per month for 12 months, and reduction in grade to airman basic (E-1). On 28 December 1987, the convening authority approved the findings and sentence as adjudged. The Air Force Court of Military Review affirmed the findings and sentence on 17 February 1988. The applicant petitioned the United States Court of Military Appeals for review of his conviction, but was denied on 2 June 1988, making the findings and sentence in his case final and conclusive under the UCMJ. As a result the applicant’s discharge was ordered to be executed on 15 July 1988. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report (Exhibit C). On 8 December 2010, the applicant was given an opportunity to respond to the FBI Report (Exhibit F). As of this date, this office has received no response. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the record of trial shows no error or injustice in the processing of the applicant’s court-martial. Prior to the trial, he entered into a pre-trial agreement. This agreement specified that the applicant agreed to plead guilty to the charge and specification in exchange for the convening authority agreeing not to approve a sentence that exceeded a bad conduct discharge and confinement for one year and one day. The applicant pled guilty at trial to the charge and specification as was agreed to in the pre-trial agreement. Prior to accepting his guilty plea, as evidenced by the record of trial, the military judge ensured the applicant understood the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea was accepted by the court. The military judge explained the elements and definitions of the offenses to which the applicant pled guilty, and the applicant explained in his own words why he believed he was guilty. The applicant also stipulated to the facts of his drug use in detail as part of his plea. On the court’s acceptance of the applicant’s guilty plea, it received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crime committed. The applicant made an unsworn statement in his own behalf and the defense also introduced some other supporting evidence. The panel of officer members took all of these factors into consideration when imposing the applicant’s sentence. The imposed sentence was below the maximum possible sentence of a dishonorable discharge, confinement for five years, total forfeiture of all pay and allowances, and reduction to the grade of airman basic (E-1). JAJM indicates that under Title 10, United States Code (USC), Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Correction 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 court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). It is JAJM’s opinion that while clemency may be granted under Title 10 USC Section 1552 (f) (2), the applicant provides no justification for his request, and clemency is not warranted. The applicant does not provide any support for the idea that he has been rehabilitated since the time of his court-martial 23 years ago. He does not dispute the finding of the court regarding his cocaine use, nor does he explain how his bad- conduct discharge was somehow unjust. The inclusion of a bad- conduct discharge in the applicant’s sentence was well within the legal limits and was part of an appropriate punishment for the offense as committed by a noncommissioned officer. Nothing provided by the applicant in his appeal erases his past criminal conduct and he has certainly not provided anything to support action by the Board now to overturn the bad-conduct discharge. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority 23 years ago when the facts and circumstances were fresh. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. It is JAJM’s opinion that upgrading the applicant’s bad-conduct discharge is not appropriate. The complete JAJM evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 5 November 2010, 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 an error or injustice. After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust. In view of the foregoing, we agree with the opinion and recommendation of the Military Justice Division and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of the existence of either an error or an injustice. Therefore, based on the evidence of record, we find no 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 AFBCMR Docket Number BC-2010-03277 in Executive Session on 7 June 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered for AFBCMR Docket Number BC-2010-03277: Exhibit A. DD Form 149, dated 26 Aug 10. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFLOA/JAJM, dated 29 Oct 10. Exhibit E. Letter, SAF/MRBR, dated 5 Nov 10. Exhibit F. Letter, AFBCMR, dated 8 Dec 10. Panel Chair