RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01753 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to general (under honorable conditions). ________________________________________________________________ THE APPLICANT CONTENDS THAT: He believes that his diagnosis of Post-Traumatic-Stress Disorder (PTSD) and use of heavy narcotics for back pain led to his BCD. In Jun 08, he made the biggest mistake of his life and it is the one thing he truly regrets during the time he served in the military. He understands the gravity of his mistake and its impact on him receiving a bad conduct discharge; however, he was not properly represented and unable to speak in his own defense. He would like the Board to strongly consider the outside factors surrounding the case. When he made [his huge error in judgment], he was not in the right state of mind. He was diagnosed with PTSD after facing combat in Iraq, in 2007, and prescribed heavy narcotics following numerous surgeries on his lower back which gave him partial paralysis in his left leg. He was sent home numerous times by his former commander, because of his mental and physical state even though he was already on a limited work profile with a four hour maximum duty day. Also, prior to his investigation due to his bad judgment, he had official orders to be separated from the Air Force due to his injuries back in Oct 08 with disability. Today, he has no medical coverage, and since being released from appellate leave, he is facing over $20,000.00 in medical bills from emergency room visits because of his severe back issues. He joined the Air Force to serve his country because he would do anything for it. He has truly learned his lesson and has served his four month jail sentence. He wishes to be given a second chance considering his condition and gratefully asks the Board to upgrade his BCD to a general discharge so he can receive the care he needs. 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 27 Sep 10 discharge; extracts from his Special Court-Martial order, No. 21, dated 30 Apr 09, and his Medical Evaluation Board (MEB) documentation. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant was undergoing an MEB for a diagnosis of chronic low back pain due to partial pars defect L5 which was deemed combat related since it originated during a Security Forces combat training exercise while deployed to Iraq. On 22 Sep 08, the Informal Physical Evaluation Board (IPEB) reviewed the medical case file and recommended discharge with severance pay with a 10 percent disability rating. On 1 Oct 08, the applicant concurred with the IPEB's findings and a 17 Nov 08 separation date was recommended. The commander noted the applicant was under investigation and his separation order for 17 Nov 08 was revoked; he was placed on administrative hold for the completion of the investigation. On 11 Mar 09, the applicant, then a senior airman (E-4), was tried by a special court-martial at Travis Air Force Base, California. The court-martial was based on an incident in Apr 08, when the applicant entered into an arrangement with a friend online to send the friend some Oxycodone pills and video games characters for $400.00. Based on the evidence, the applicant was eventually charged with one specification of wrongful distribution of a controlled substance, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). Pursuant to a pretrial agreement, the applicant pled guilty to the charge and specification and was sentenced in accordance with his plea by a military judge to a BCD, confinement for four months, and reduction to the grade of airman basic (E-1). On 30 Apr 09, the convening authority approved the finding and sentence as adjudged. The Air Force Court of Criminal Appeals affirmed the finding and sentence on 25 Jan 10. The applicant petitioned the United States Court of Appeals for the Armed Forces but that petition was denied on 7 Apr 10, making the findings and sentence in his case final and conclusive under the UCMJ. As a result, it was directed that the applicant be separated. The applicant was discharged, on 4 May 10, with a reason for separation of court-martial (other), and a bad conduct character of service. He was credited with 4 years, 4 months, and 26 days of active duty service, including the period of 11 Mar 09 – 30 Jun 09 for lost time due to confinement. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSD recommends denial, stating, in part, that the preponderance of evidence reflects that no error or injustice occurred during the disability process. The governing instruction notes that members who are in military confinement are not eligible for disability separation processing until their sentence is complete and they are placed in a return to duty status. The applicant's petition to appeal was denied on 7 April 2010, making the findings in his case final. His BCD was ordered to be executed on 4 May 10. The complete AFPC/DPSD evaluation is at Exhibit C. AFLOA/JAJM recommends denial, stating, in part, that upgrading the applicant’s BCD is not appropriate based on the merits of the application. The applicant alleges error or injustice in that he was "not properly represented and [he] was unable to speak on behalf of [his] own defense." A review of the Record of Trial does not support the applicant’s allegation of error or injustice. Prior to the trial, the applicant entered into a pretrial agreement. This agreement specified that the applicant agreed to plead guilty to the charge and specification, in exchange for which, the convening authority agreed to refer the case to a special court-martial. The applicant pled guilty at trial to the charge and specification as was agreed to in the pretrial 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 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 plead 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 an unsworn statement in his own behalf and the defense also introduced some documents in support of mitigation of the sentence. 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 BCD, confinement for one year, two-thirds forfeiture of pay and allowances for one year, and reduction to the grade of airman basic. The applicant does not provide any support for his contention that he was not properly represented or that he could not speak on his own behalf. On the other hand, the transcript of the trial shows that the applicant was represented throughout the court-martial by his two assigned military defense counsels at the Article 32, UCMJ, hearing and at trial. The applicant had the opportunity to explain to the military judge in his own words why he was guilty of the charge and specification. Once applicant's guilty plea was accepted by the military judge, the applicant gave an unsworn statement, verbally and in writing, as mitigating evidence. The complete AFLOA/JAJM evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 9 Sep 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 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 find no evidence that 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. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to the Board's understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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-2011-01753 in Executive Session on 5 January 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Dec 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSD, dated 24 Aug 10. Exhibit D. Letter, AFLOA/JAJM, dated 4 Aug 11. Exhibit E. Letter, SAF/MRBR, dated 9 Sep 11. Chair