RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04580 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ THE APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to honorable with an effective date of separation of 15 Feb 80, in the grade of sergeant (Sgt/E-4). ________________________________________________________________ THE APPLICANT CONTENDS THAT: He believes that his service-connected Post-Traumatic-Stress Disorder (PTSD) led to his discharge. Following his involvement in a fatal accident, in which his passenger was killed, he started showing symptoms of PTSD and should have been treated for his condition. He was arrested, charged and released; and then, subsequently court-martialed for possession of marijuana. He should have been released at his expiration term of service (ETS) of 15 Feb 80. In support of his appeal, the applicant provides a personal statement; a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 30 Jun 81 discharge; extracts from his discharge correspondence, and Summary of Trial. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 22 April 1980, the applicant, then a sergeant (E-4), was tried at a general court-martial at Grissom Air Force Base, Indiana. In October 1979, the applicant was found to have possessed and transferred controlled substances on the flight line. He was eventually charged with two specifications of wrongful transfer of marijuana and one specification of wrongful possession of marijuana, al1 in violation of Article 134, Uniform Code of Military Justice (UCMJ). One of the specifications of wrongful transfer of marijuana was alleged to be of 120.6 grams of marijuana. The applicant pled guilty to the charge and specifications and was sentenced by a military judge to a bad conduct discharge, six months confinement at hard labor and reduction to the grade of airman first class (E-3). On 27 June 1980, the convening authority approved the findings and sentence as adjudged. The Air Force Court of Military Review affirmed the findings and sentence on 10 February 1981. The applicant's petition to the United States Court of Military Appeals for review of his conviction was denied on 14 May 1981, 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 24 June 1981. Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report, which is attached at Exhibit C. The applicant’s DD Form 214 was administratively corrected to change Item 12a, Date entered AD this period: 1976 Feb 17; Item 12c, Net Active Service this Period: 05 years 04 months 14 days; Item 12d, Total Prior Active Service: 03 years 00 months 04 days; and in Item 18, Remarks, Continuous honorable active military service from 13 Feb 73 – 16 Feb 76. ________________________________________________________________ THE AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, stating, in part, that upgrading the applicant’s BCD is not appropriate and his request should be denied as untimely or on the merits. The applicant has identified as errors or injustices the facts that: he did not receive treatment from the Air Force for PTSD after a serious car accident in September 1979; and his court- martial is invalid due to the fact that he should have ended his term of service in February 1980 (two months before the court- martial took place). We cannot address the allegation of lack of treatment. The applicant did not include any documentation in the application to show a diagnosis of PTSD and there is no mention in the Record of Trial to substantiate the applicant's claim of having been involved in a car accident. JAJM notes that the Record of Trial includes a memorandum from the Chief of Mental Health Services, dated 23 June 1980. The memorandum states that "[t]here is no evidence of mental defect, emotional illness, or psychiatric disorder ... of sufficient severity to warrant disposition through military medical channels." The Record of Trial does not support the applicant's contention that he should have been discharged at the expiration of his term of service in February 1980, rather than being court-martialed in April 1980. His transcript of the trial shows that the defense did not challenge the jurisdiction of the military court to try the offenses. The military judge specifically found that the court had jurisdiction over all of the offenses charged and concluded that "the military interest in deterring these and similar offenses is distinct from and greater than, that of civilian society and that the distinct military interest can be vindicated adequately only in a trial by court-martial." In addition, the Staff Judge Advocate noted, in his Review of Trial by Court-Martial, that the applicant had enlisted for a term of four years commencing on 17 February 1976. The Staff Judge Advocate stated that military law (U.S. v. Smith, 4 MJ. 265 (1978)) would allow the Air Force to preserve court-martial jurisdiction over an individual, such as the applicant, who is nearing the expiration of his term of service, by: preferring charges before the date of expiration and informing the individual of the action. The Staff Judge Advocate noted that the applicant’s commander notified the applicant that charges had been preferred against him on 18 January 1980. JAJM notes the rule of military law followed in the applicant's case is the same rule today. In fact, pursuant to Air Force Instruction 51- 201, Administration of Military Justice paragraph 3.3.4, airmen may be retained beyond the expiration of their term of service in anticipation of the preferral of charges by notifying the Military Personnel Flight in writing. Beyond the allegations of error and injustice raised by the applicant, an examination of the record of trial shows no error in the processing of the court-martial. The applicant pled guilty at trial to the charge and specifications. 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. 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 crimes committed. The applicant made a sworn statement in his own behalf and requested that his defense attorney argue for a dishonorable discharge in lieu of receiving confinement. The military judge took 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 15 years, forfeiture of all pay and allowances, and reduction to the grade of airman basic. The complete AFLOA/JAJM evaluation, with attachments, is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 25 March 2011 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). In his response, the applicant indicates that he had provided all of the evidence requested in support of his claim. In support of his appeal, the applicant provides a newspaper clipping and a copy of his Honorable Discharge certificate, rendered for the periods of service of 12 Feb 73 and 16 Feb 76, respectively. The applicant’s complete response, with attachments, is at Exhibit F. On 19 April 2011, a copy of the FBI report was forwarded to the applicant for comment. At that time, he was also invited to provide additional evidence pertaining to his activities since leaving the service (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 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 general 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 general 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 grant favorable action on his request. 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 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-2010-04580 in Executive Session on 11 August 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Nov 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation. Exhibit D. Letter, AFLOA/JAJM, dated 24 Feb 11. Exhibit E. Letter, SAF/MRBR, dated 25 Mar 11. Exhibit F. Letter, Applicant, dated 7 Apr 11. Exhibit G. Letter, AFBCMR, dated 19 Apr 11. Panel Chair