RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03769 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge be upgraded to general (under honorable conditions). ________________________________________________________________ APPLICANT CONTENDS THAT: After his honorable discharge, the criminal action was deemed a dead issue. Upon his reenlistment, the case was reopened. He feels the reenlistment was entrapment. Current economic developments have made day to day life difficult. He would like to apply for benefits to support his family. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the regular Air Force on 16 June 1987. On 20 June 1991, he was convicted by general court-martial of six specifications of larceny, in violation of Article 121, Uniform Code of Military Justice (UCMJ); three specifications of forgery, in violation of Article 123, UCMJ and one specification of false swearing, in violation of Article 134, UCMJ. He was sentenced to a bad conduct discharge, confinement for one year, forfeiture of $400.00 pay per month for 12 months and reduction to the grade of airman basic. He was discharged 27 June 1997 with a bad conduct discharge. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Title 10 U.S.C 1552(f) limits the Boards ability to correct court-martial records. Specifically, it permits the correction of a record to reflect actions taken by a reviewing authority and the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred after 5 May 1950. The applicant alleges that he was entrapped into reenlisting. He asserts that he was told the investigation into his misconduct was closed, and that the investigation was reopened after he reenlisted. He insinuates that had he known the investigation would be reopened, he would not have reenlisted. Yet, he provides no support for his assertion the investigation concerning his misconduct had been closed. At the time of his court-martial, the applicant did not raise this issue. Further, he did not raise this issue in either of his clemency requests. The applicant’s case underwent a lengthy appellate review involving multiple reviews by both the Air Force Court of Criminal Appeals (AFCCA) and the United States Court of Appeals for the Armed Forces (USCAAF). Whereas, USCAAF returned the case after finding the applicant did not receive fair and impartial legal counsel in preparing his clemency request. At no point did the applicant raise this reenlistment issue in his appeals. There is no evidence the applicant was entrapped into reenlisting. The sentence was later affirmed by both the AFCCA and USCAAF. The applicant raises no error in the processing of his court- martial. He pled not guilty at trial, nevertheless, the court adjudged guilt on the specifications beyond a reasonable doubt, based on the evidence presented by the prosecution. During the court-martial, the prosecution introduced evidence that the applicant forced [sic] eighteen checks belonging to a fellow airman at two overseas Army and Air Force Exchange Service facilities. The evidence presented included testimony by the airman whose checks were forged, Air Force investigators, a Questioned Documents Examiner Report and other evidence. The applicant, who was represented by military counsel, had the opportunity to challenge these witnesses and the report. The court received evidence in aggravation, as well as, extenuation and mitigation prior to crafting an appropriate sentence for the crimes committed. The court-martial took all of these factors into consideration when imposing the sentence. Rules for Court-Martial 1003(b)(8)(C) states a bad conduct discharge is designed as punishment for bad conduct. It also indicates that a bad conduct discharge is more than merely a service characterization; it is punishment for crimes committed while a member of the Armed Forces. The applicant’s sentence was an appropriate sentence for the offenses committed and well within the legal limits. A bad conduct discharge was and continues to be part of a proper sentence and properly characterizes his service. Clemency in this case, would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veteran’s 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 are barred when the veteran was discharged or dismissed by reason of the sentence of a general court-martial. Upgrading the applicant’s discharge is not appropriate. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation and a request for post- service information was forwarded to the applicant for review and comment on 30 October 2012 and 12 December 2012, respectively (Exhibits D and 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 error or injustice. We note 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), our actions 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, the seriousness of the offenses to which convicted, and the absence of any documentation pertaining to his post-service activities. Based on the evidence of record, we cannot conclude that clemency is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. ________________________________________________________________ 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-2012-03769 in Executive Session on 16 April 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, 1 Aug 12, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 19 Oct 12. Exhibit D. Letter, SAF/MRBR, dated 30 Oct 12. Exhibit E. Letter, SAF/MRBC, dated 12 Dec 12 w/atch. Panel Chair