RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02285 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: Her bad conduct discharge (BCD) be upgraded to general or medical discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: She was diagnosed with Post-Traumatic Stress Disorder (PTSD) and did not receive the medical treatment recommended by the doctor. She believes this may explain her behavior during the latter part of her enlistment. She needs her discharge upgraded in order to receive the medical care she needs. In support of her appeal, the applicant provides a copy of her DD Form 214, Certificate of Release or Discharge from Active Duty, and an excerpt of the direct examination of her psychiatrist by the defense counsel. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 16 November 1989, the applicant contracted her enlistment in the Regular Air Force. She served as a Munitions System Journeyman. The applicant was charged for assaulting two airmen in December 1992. On 20 April 1993, she was tried by general court-martial and pled guilty to the charge and specifications pursuant to a pretrial agreement and was sentenced to a BCD, confinement for seven months, and reduction to the grade of airman basic. On 24 June 1993, the convening authority approved the sentence as related to the BCD, confinement, and reduction in rank. On 30 November 1994, the Air Force Court of Criminal Appeals affirmed the findings and sentence. The applicant appealed to the United States Court of Appeals for the Armed Forces for review of her conviction. On 30 June 1994, the court denied the appeal, therefore making the findings and sentence final. Her BCD was executed on 28 July 1995. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided an Investigative Report which is attached at Exhibit C. On 14 Mar 12, a copy of the FBI Report and a request for post- service information were forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit H). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial noting a review of the record of trial shows no error in the processing of the court-martial, to include the allegation raised by the applicant. Prior to trial, the applicant entered in to a pretrial agreement that she would plead guilty to the charge and specifications in exchange for sentence that did not exceed a BCD, six months confinement, and forfeiture of two-thirds pay per month for six months. She pled guilty as agreed to in the pretrial agreement. Prior to accepting the applicant’s guilty plea, the Judge ensured she understood the meaning and effect of her plea and, the maximum punishment she could have received if her guilty plea was accepted by the court. In addition, the judge explained the elements and definitions of the offense and the applicant expressed why she believed she was guilty. After accepting the applicant’s guilty plea, the court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The applicant also gave an unsworn statement and her counsel submitted letters of support requesting clemency. The judge considered these factors when imposing the sentence. The imposed sentence was below the maximum possible of a dishonorably discharge, three and one-half years confinement, and forfeiture of all pay and allowances, and reduction in rank to airman basic. Additionally, she received a favorable cap on punishment in her pretrial agreement. The applicant’s contention that she should have received mental health treatment does not erase her criminal conduct, nor does it make her BCD any less appropriate for the offenses she committed and support favorable action of the Board to undo part of the punishment. To overturn the punishment now would require the Board substitute its judgment for that rendered by the court and the convening authority over 18 years ago when the facts and circumstances were fresh. While clemency may be granted, the applicant provided very little justification in support of her request. A BCD is designed as a punishment for bad conduct. The BCD is more than a service characterization; it is a punishment for the crimes she committed while on active duty. Her sentence to a BCD, reduction in rank, and confinement was well within the legal limits and was an appropriate punishment for the offenses committed. 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 general court-martial. 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’s while on active duty. The AFLOA/JAJM complete evaluation is at Exhibit D. The AFBCMR Medical Consultant recommends denial noting the statements by the applicant's psychiatrist and her recent diagnosis of Bipolar Disorder is insufficient to justify a medical basis for discharge. The evidence is also insufficient to reflect she was unable to distinguish right from wrong or suffered from a duty-limiting mental disorder of such severity that should have been considered an alternative basis for discharge. There is also no evidence of the applicant's exposure to wartime traumatic events during her service in Saudi Arabia to raise concern for her post deployment mental well-being. The Medical Consultant yields to the opinion of AFLOA/JAJM regarding the applicant’s request for a change to her discharge. The Medical Consultant empathizes with the applicant's need for ongoing medical care, but found the applicant has not met the burden of proof of an error or injustice. The Medical Consultant’s complete evaluation is at Exhibit E. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the AFBCMR Medical Consultant evaluation and Air Force evaluation were forwarded to the applicant on 20 December 2011 and 6 March 2012, respectively, for review and comment within 30 days (Exhibits F and G). As of this date, no response has been received by this office. _________________________________________________________________ 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 took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force office of primary responsibility (OPR) and the AFBCMR Medical Consultant and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error or an injustice. Furthermore, 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 her 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 in this case. 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-2011-02285 in Executive Session on 16 April 2012, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-02285 was considered: Exhibit A. DD Form 149, dated 6 Jun 11, w/atchs. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. FBI Investigative Report. Exhibit D. Letter, AFLOA/JAJM, dated 3 Oct 11. Exhibit E. Letter, AFBCMR Medical Consultant, dated 6 Dec 11. Exhibit F. Letter, AFBCMR, dated 20 Dec ll. Exhibit G. Letter, AFBCMR, dated 6 Mar 12. Exhibit H. Letter, AFBCMR, dated 14 Mar 12, w/atch. Panel Chair