RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04574 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: At the time of his court-martial, he only had 40 more days before he was separating from the military with an honorable discharge. The charges brought against him were completely hearsay. The offense, which allegedly took place off base, was not illegal in the State’s jurisdiction at that time. 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: The applicant is a former member of the Regular Air Force who entered active duty on 6 September 1978. He was progressively promoted to the grade of senior airman (E-4). On 1 June 1981, the applicant was non-selected for reenlistment under the Selective Reenlistment Program for not meeting acceptable standards of personal responsibility, i.e., problems with personal management and meeting acceptable military and grooming standards. On 8 June 1981, the applicant chose not to appeal the decision. In July 1982, the applicant was tried and found guilty by a general court-martial for violation of Article 134, Uniform Code of Military Justice (UCMJ), and was sentenced to one year confinement at hard labor, reduction to the grade of airman basic (E-1), and a BCD. On 22 October 1982, the sentence was approved as adjudged. On 26 October 1983, after the appeal process was completed and affirmed the findings and sentence in the case, the applicant’s BCD was ordered to be executed. On 2 November 1983, after serving his period of confinement, the applicant was separated from active duty with a BCD. His narrative reason for separation indicates “conviction by court- martial (other than desertion). He served 4 years, 4 months, and 13 days on active duty. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report (Exhibit C). On 14 June 2011, the applicant was given an opportunity to submit comments about his post service activities and in response to the FBI Report (Exhibit F). The applicant’s response is at Exhibit G. The remaining relevant facts pertaining to this application are contained in the evaluation prepared by the appropriate office of the Air Force at Exhibit D. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the only records of military justice actions against the applicant are located in his personnel records. The Air Force Military Justice Division does not have a record of the actions against him in their Automated Military Justice Analysis and Management System. In addition, there is no record of trial available for the court-martial indicated in his personnel records. JAJM states they cannot directly evaluate the applicant’s claims of specific error at his trial since they do not have a copy of the record of trial. However, the available documents in his military personnel records point to the fact that he had a fair trial and was afforded all his rights as a service member facing a general court-martial. 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 has not provided sufficient information to warrant a grant of clemency by the Board. The complete JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He has been a painting contractor for over 25 years, from the date of his discharge to the date he injured a cervical disc and was forced into retirement in 2004. Since then, he has become a software developer working freelance projects and building websites for small businesses. He has also had sales and retail management experience since 2004. Over the past 14 years, he has made volunteering a big part of his life. He admits he made some bad decisions which led to the circumstances of his discharge; however, he has resolved those issues that contributed to his conviction. The applicant’s complete rebuttal, with attachments, is at Exhibit G. _________________________________________________________________ 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 probable 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 1552F, our actions 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 find no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the UCMJ. We have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offenses of which convicted, and the absence of any other documentation pertaining to post- service activities. We considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis. Therefore, in the absence of evidence to the contrary, we find no basis upon which 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-2010-04574 in Executive Session on 9 August 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-04574: Exhibit A. DD Form 149, dated 29 Nov 10. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFLOA/JAJM, dated 28 Mar 11. Exhibit E. Letter, SAF/MRBR, dated 8 Apr 11. Exhibit F. Letter, AFBCMR, dated 14 Jun 11, w/atch. Exhibit G. Letter, Applicant, not dated, w/atchs. Panel Chair