RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01421 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to a general (under honorable conditions) discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: His discharge was inequitable because he was not given the same punishment as other airmen. One was given a general discharge, while another was returned to duty after being punished. He was never offered any help with his addiction. He was a young man and made mistakes and has learned from them. Now he is a better man. He is getting old and does not want to die with a BCD on his record. In support of his appeal, the applicant provides a letter of appreciation, Bible Study Certificate, and his business flyer. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 13 Feb 87, the applicant contracted his initial enlistment in the Regular Air Force. He served as a Fire Protection Specialist. On 11 Jul 89, the applicant was tried by general court-martial for wrongful use of cocaine and marijuana. He pled guilty to the charge and specifications and was sentenced to a BCD, confinement, forfeiture of pay and a reduction in rank to the grade of airman basic. On 22 Jan 90, the convening authority approved the sentence as adjudged. On 6 Sep 89, the Air Force Court of Military Review found the findings and sentence correct in law and fact. The applicant waived his right to appeal to the United States Court of Military Appeals. The applicant’s BCD was ordered executed on 22 Jan 90. On 5 Feb 90, the applicant was furnished a BCD and was credited with 2 years, 11 months, and 23 days of active service. He had 4 months and 28 days of lost time. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating the applicant's case was conducted properly and in accordance with the rules and procedures of courts-martial. His rights during the trial and appeal were thoroughly observed. The applicant has not identified any errors or injustices related to his prosecution or sentence. The applicant voluntarily pled guilty to the charge and specifications. The military judge weighed all the evidence and found the applicant guilty of two specifications and not guilty of the use of marijuana. However, after accepting the applicant’s guilty plea, the court received and considered evidence regarding the applicant’s admission of smoking cocaine in his off-base home. The court imposed an appropriate punishment for the offenses committed. To overturn this punishment now would require the Board to substitute its judgment for that rendered by those at that time when the facts and circumstances of the situation were fresh. His BCD was and continues to be part of a proper sentence and properly reflects his service. Additionally, to grant clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress' intent in 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. 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 sentence of a general court- martial. The complete AFLOA/JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 8 Jul 11, for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). A copy of the FBI Investigative Report and a request for post- service information was forwarded to the applicant on 18 Oct 11 for review and comment within 30 days. As of this date, no response has been received by this office (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 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 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 Uniform Code of Military Justice (UCMJ). We have considered the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted. Based on the evidence of record, we cannot conclude that clemency is warranted. Therefore, 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-2011-01421 in Executive Session on 6 Dec 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 27 Mar 11, w/atchs. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. FBI Investigative Report. Exhibit D. Letter, AFLOA/JAJM, dated 28 Jun 11. Exhibit E. Letter, SAF/MRBR, dated 8 Jul 11. Exhibit F. Letter, AFBCMR, dated 18 Oct 11, w/atch. Panel Chair