RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03860 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: Based on his successful service record with AmeriCorps and his personal growth since the time of his discharge, he feels his characterization of discharge should be upgraded based on clemency. In support of his appeal, the applicant provides copies of his AmeriCorps service records, character references, and post- service accomplishments. A copy of the applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 2 April 1990, the applicant, then an airman first class (E-2), was tried by special court-martial for one specification of wrongful use of marijuana and one specification of wrongful use of cocaine in violation of Article 112a, Uniform Code of Military Justice (UCMJ). The Government withdrew the specification concerning the wrongful use of marijuana and pursuant to a pretrial agreement, the applicant pled guilty to the wrongful use of cocaine. Before a military judge, the applicant was found guilty in accordance with his plea. He was sentenced to a BCD, confinement for ten months, forfeiture of $300 pay per month for six months, and reduction to the grade of airman basic (E-1). On 14 June 1990, the convening authority approved only so much of the sentence as provided for a BCD, eight months confinement, forfeiture of $300 pay per month for six months, and reduction to airman basic. On 3 August 1990, the Air Force Court of Military Review affirmed the findings and sentence. The applicant declined to petition the United States Court of Military Appeals for review of his conviction, 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 5 February 1991. The applicant was discharged effective 5 February 1991 with a BCD and a narrative reason for separation of “Conviction by Court- Martial (Other than Desertion).” He served 3 years, 6 months, and 22 days on active duty with lost time from 2 April 1990 through 19 October 1990. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant offers no allegation of error or injustice. He simply requests his BCD be upgraded due to his personal growth and self improvement over the last twenty years. The record of trial shows no error in the processing of the court-martial. Both the adjudged and the approved sentences were below the maximum possible sentence of a dishonorable discharge, confinement for five years, total forfeiture of all pay and allowances, and reduction to the grade of airman basic. His sentence to a BCD, eight months confinement, forfeiture of $300 pay per month for six months, and reduction to airman basic was well within the legal limits and was appropriate punishment for the offense committed. It is JAJM’s opinion that clemency in this case would be unfair to those individuals who honorably served their country while in uniform. It addition, it would be offensive to those who served honorably to extend the same benefits to someone who committed crimes such as the applicant’s while on active duty. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 10 February 2012, for review and comment within 30 days (Exhibit E). As of this date, this office has received no response. _________________________________________________________________ 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 opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Furthermore, we do not find clemency is appropriate in this case since the applicant has not provided any evidence concerning his post-service activities. Therefore, the applicant’s request is not favorably considered. _________________________________________________________________ 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-2011-03860 in Executive Session on 8 May 2012, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-03860 was considered: Exhibit A. DD Form 149, dated 3 Sep 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFLOA/JAJM, dated 6 Dec 11. Exhibit E. Letter, SAF/MRBR, dated 10 Feb 12. Exhibit F. Letter, AFBCMR, dated 9 Feb 12, w/atch. Panel Chair