RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-05240 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: During his time in the Air Force he experienced racism and unfair treatment and reacted the only way he knew how; negatively. If he had received the proper support and resources he would have had a different experience in the Air Force. He has not been able to get his life on track due to failed relationships/marriages and his inability to maintain meaningful employment. He has also battled with drugs and alcohol. In support of his appeal, the applicant provides a personal statement. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 30 May 79, the applicant enlisted in the Regular Air Force for a period of four years. On 13 Jun 80, the applicant received an Article 15 for striking another airman with a hair pick in the left hand. His punishment consisted of a suspended reduction to the grade of airman and forfeiture of $50.00 per month for two months. On 1 Mar 82, the applicant received an Article 15 for unlawfully striking a female about the face and arms with his fists; failed to obey a lawful general regulation by having a female guest in his dorm room during other than authorized visiting hours. For this offense, he received a reduction to the grade of airman first class, forfeiture of $75.00 per month for one month. He appealed the Article 15; however, his appeal was denied. On 29 Nov 82, the applicant received an Article 15 for wrongfully using provoking words; being disrespectful in language and deportment towards a Senior Noncommissioned Officer (SNCO); on or about 13 Nov 82, he communicated to an NCO, a female, certain indecent and insulting language, he wrongfully committed an indecent act with an airman, by presenting her with a box of candy which he knew had a condom in it. His punishment consisted of a reduction to the grade of airman basic. He appealed the Article 15; however, his appeal was denied. On 19 Jan 83, the applicant was tried by a special court-martial at the Royal Air Force Greenham Common. The court-martial was based on charges that occurred on 8 Jan 83; Charge I: for unlawfully striking someone with his hands and fists; Charge II: participating in a breach of the peace by ejecting someone from his barracks room; by assaulting that person at or near his barracks; by directing insulting language toward that person near his barracks; Charge III, failed to obey a lawful order to produce a military ID card; Charge IV, on 9 Jan 83, he was disrespectful in language and deportment toward, his superior NCO; Charge V, on 9 Jan 83, wrongfully used provoking words towards an NCO. To the specification of charges I, II, III and IV, he pled guilty to the charges and to Charge V, it was dismissed by the military judge. He was found guilty of all of the remaining specifications and charges. The applicant was sentenced in accordance with his plea by a military judge to a BCD, confinement with hard labor for four months, and forfeiture of $382.00 per month for four months. On 21 Jan 83, the court- martial was adjudged. On 3 Feb 86, the applicant was discharged by reason of conviction by court-martial (other than desertion), with a BCD, in the grade of airman basic. He was credited with 6 years, 4 months, and 26 days of active duty service, excluding lost time from 21 Jan 83 thru 28 Apr 83 and 2 years, 9 months, and 4 days of excess leave. On 27 Jan 88, the applicant appealed to the Air Force Discharge Review Board (AFDRB) to have his discharge upgraded; however, the AFDRB denied his application. They concluded the discharge was appropriate under the facts and circumstances of his case and there was insufficient basis to warrant clemency for a change in the discharge (see AFDRB Hearing Record at Exhibit B). ________________________________________________________________ THE AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, stating, in part, that upgrading the applicant’s BCD is not appropriate on the basis of an error or injustice with the court-martial process. The applicant contends that he experienced racism and unfair treatment during his time in the Air Force. He does not claim that his behavior was appropriate. He only argues that had this racism not occurred, or had he been able to seek help and counseling regarding this prejudicial treatment, he would not have acted the way he did. The requested relief cannot be done administratively. The application has not been submitted in a timely fashion. In accordance with Title 10 U.S.C. §1552(f)(2), the Board may take "action on the sentence of a court-martial for purposes of clemency." In this case, we find no error or injustice with the court-martial process which would warrant changing the applicant's court-martial sentence. The applicant had a history of inappropriate conduct, including an Article 15 in 1982. No evidence is provided to substantiate his claims of prejudicial treatment. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 1 Aug 14 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ THE BOARD CONCLUDES THAT: The Board has carefully reviewed the applicant’s submission and the evidence of record and the Board Majority does not find a sufficient basis to excuse the untimely filing of this application. The Board majority noted that the applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records. The Board majority stated that the applicant has not shown a plausible reason for the delay in filing. The Board majority was not persuaded that the record raises issues of error or injustice which require resolution on the merits. Thus, the Board majority cannot conclude that it would be in the interest of justice to excuse the untimely filing of this application. ________________________________________________________________ DECISION OF THE BOARD: The application was not timely filed and it would not be in the interest of justice to waive the untimeliness. It is the decision of the Board, therefore, to reject the application as untimely. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2013-05240 in Executive Session on 9 Sep 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member By a majority vote, the Board recommended the applicant’s request be denied as untimely and on the merits. Mr. Walker voted to deny on the merits alone and elected not to submit a minority report. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 9 Sep 13, w/atch. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 23 Jul 14. Exhibit D. Letter, SAF/MRBR, dated 29 Jul 14, w/atch. Exhibit E. Letter, SAF/MRBR, dated 1 Aug 14.