RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04198 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His bad conduct discharge (BCD) be upgraded to a general discharge. 2. His reentry (RE) code of 2B, which denotes, “separated with a general or under-other-than-honorable conditions (UOTHC) discharge” be changed. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. He needs his BCD upgraded in order to continue to support his family. 2. His BCD was unjust because the punishment was too severe for the infraction. 3. His legal aid was remiss in her duties and showed little or no interest in his case; was “clearly on the side of the military”; and failed to contest or debate his position. 4. He was coerced to plead guilty by his appointed legal aid in order to “expedite the process” and the military did not conduct a follow-up urinalysis or retest the same day sample to check for “false positive readings.” 5. There are two court cases with similar circumstances to his case, in which those accused have been allowed to work for the government or returned to military duty. 6. He personally knows of a case involving a technical sergeant who had three positive urinalysis tests for marijuana, but was allowed to reenlist and eventually retire from the service. In support of his request, the applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, a personal statement, letters of support and certificates of appreciation. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 17 June 1974, the applicant enlisted in the Regular Air Force. In June 1992, the applicant was accused of wrongful use of a controlled substance. On 30 November 1992, the applicant was tried by a Special Court- Martial and pled guilty to the wrongful use of a controlled substance, in violation of Article 112a, of the Uniform Code of Military Justice (UCMJ). The applicant pled guilty and was sentenced to a BCD, confinement for 15 days and reduction to the grade of senior airman. On 6 January 1993, the convening authority approved the findings and sentence as adjudged. On 27 May 1993, the Air Force Court of Criminal Appeals affirmed the findings and sentence in the applicant’s case. On 1 September 1993, the United States Court of Appeals for the Armed Forces denied the applicant’s petition for review, making the case final and conclusive under the UCMJ. On 22 October 2003, the Air Force Discharge Review Board denied the applicant’s request for upgrade of his discharge to general. On 9 November 1993, the applicant’s BCD was ordered to be executed and the applicant was discharged with a BCD on 10 November 1993. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of his request to upgrade his discharge to general. JAJM states the applicant has alleged an error in his court-martial in identifying his “legal aid” as having little or no interest in his case and that he “was coerced” to plead guilty because “the appointed legal aid” wanted to expedite the process. JAJM was not able to examine the record of trial in the applicant’s case. However, in addressing the applicant’s allegations of error and injustice, JAJM reviewed the documents provided by the applicant and the limited information in the Air Force Automated Military Justice Analysis and Management System (AMJAMS). Based on the applicant’s submission and the information included in the AMJAMS, there is no apparent error or injustice in how the court-martial was conducted. In addition, the applicant pled guilty at trial to the charge and specification. Implicit in the application is a request from the applicant for clemency because of the injustice he perceives in his case. While clemency may be granted under 10 U.S.C. 1552(f)(2), the applicant’s submission does not provide enough support for action by the Board. The applicant’s case for clemency relies on mostly outdated letters of support and certificates of appreciation. The sentence to a BCD, 15 days confinement and reduction to the grade of senior airman was within the legal limits and was appropriate for the applicant’s offense. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority almost 20 years ago when the facts and circumstances were fresh. Granting clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veteran’s Benefits program was to express thanks for veterans’ personal sacrifices, separations from 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 while on active duty. The complete JAJM evaluation is at Exhibit D. HQ AFPC/DPSOA recommends denial of his request to change RE code. DPSOA states the applicant was involuntarily discharged with a narrative reason for separation of court-martial on 10 November 1993. RE code 2B is used for all discharges with an UOTHC or less character of service to include those classified as BCD. The applicant’s RE code of 2B is required per AFI 36- 2606, Reenlistments in the United States Air Force, chapter 3, based on his involuntary discharge with a BCD character of service. The complete DPSOA evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 1 April 2011 for review and comment within 30 days (Exhibit F). As of this date, this office has not received a 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 error or injustice. We note that 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 special 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 Uniform Code of Military Justice (UCMJ). We have considered the applicant's overall quality of service, the special court-martial conviction which precipitated the discharge, and the seriousness of the offense to which convicted, and having found no error or injustice with regard to the actions that occurred while the applicant was a military member, we conclude that no basis exists to upgrade his discharge or change his RE code. In addition, based on the evidence of record, we are not persuaded the characterization of the applicant’s discharge warrants an upgrade to general on the basis of clemency. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider 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-2010-04198 in Executive Session on 24 May 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-04198 was considered: Exhibit A. DD Form 149, dated 10 Oct 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report, dated 4 Apr 11. Exhibit D. AFLOA/JAJM, Letter, dated 16 Feb 11. Exhibit E. AFPC/DPSOA, Letter, dated 25 Feb 11. Exhibit F. SAF/MRBR, Letter, dated 1 Apr 11. Panel Chair