RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00780 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: His BCD is preventing him from obtaining employment. He is homeless and cannot support his family. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 27 Feb 01, the applicant commenced his enlistment in the Regular Air Force. On 19 Apr 02, the applicant was tried and convicted by a general court-martial for two specifications of wrongful use of cocaine, one specification wrongful possession of cocaine, one specification of fraudulent enlistment. The applicant was also charged with one specification of desertion, but was found guilty of a lesser included offense of absent without leave. He was sentenced to a BCD, confinement for ten months, and forfeiture of all pay and allowances. On 8 Jun 02, the convening authority approved the finding and the sentence for a BCD, seven months confinement and forfeiture of all pay and allowances. On 13 Jul 02, the convening authority ordered the execution of the BCD. He was furnished a BCD on 13 Jul 03, and credited with 3 years, 4 months, and 17 days of active service. The applicant was excess leave from 18 Jun 02 to 12 Jul 03. On 16 Aug 04, a DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, was issued amending the applicant’s DD Form 214 to reflect he was discharged on 30 Jun 04, and was credited with two years, ten months and one day of active service. His DD Form 214 was further amended to reflect he was on excess leave from 18 Jun 02 to 30 Jun 04. On 18 Nov 13, a request for post-service information was forwarded to the applicant for response within 30 days (Exhibit E). As of this date, no response has been received by this office. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. There was no evidence provided or located in records showing an error in the processing of the special court-martial; nor does the applicant contend there was an error in the processing of his court-martial or his conviction. The applicant pled guilty to wrongful use of cocaine and being absent without leave. He was represented by military counsel and had the opportunity to demand the government prove he committed the offenses against him. Prior to accepting the applicant’s guilty plea, the judge ensured he understood the meaning and effect of his plea and the maximum punishment that could be imposed if his plea was accepted by the court. In cases which include guilty pleas, the military judge ensures the accused understands the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea is accepted by the court. The military judge explains the elements and definitions of the offenses to which the accused plead guilty; and has the accused explain in his own words why he believes he is guilty. Upon the court's acceptance of the guilty plea, it will receive evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The Rules for Courts-Martial states that a BCD "is designed as punishment for bad-conduct." It also indicates that a bad conduct discharge is more than merely a service characterization; it is a punishment for the crimes the individual committed while a member of the armed forces. The applicant's sentence was within the legal limits and was an appropriate punishment for the offenses committed. A BCD was and continues to be part of a proper sentence and properly characterizes his service. While clemency may be granted under 10 U.S.C § 1552(f)(2), clemency is not warranted in this case. The applicant’s sentence to a BCD, reduction in rank, and confinement for four months was well within the legal limits and was an appropriate punishment for the offense committed. Congress’ intent in setting up the Veteran’s Benefits Program was to express thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy actions, and suffering financial hardship. 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 the sentence of a general court-martial. The applicant’s service time was punctuated by cocaine use, which should not be rewarded by the granting of veteran’s benefits. Upgrading the applicant’s BCD is not appropriate. A complete copy of the AFLOA/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 14 Apr 13 for review and comment within 30 days (Exhibit D). 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 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 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, and the seriousness of the offenses to which convicted. However, in the absence of any evidence related to the applicant’s post- service activities that would enable is to determine if his accomplishments since his discharge are sufficient to overcome the misconduct for which he was discharged, 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-2013-00780 in Executive Session on 19 Dec 13, under the provisions of AFI 36-2603: , Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Feb 13, w/atchs. Exhibit B. Applicant's Master Personnel Records Exhibit C. Letter, AFLOA/JAJM, dated 29 Mar 13. Exhibit D. Letter, SAF/MRBR, dated 14 Apr 13. Exhibit E. Letter, AFBCMR, dated 18 Nov 13, w/atch. Chair