RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2003-02967
XXXXXXX COUNSEL: NONE
XXXXXXX HEARING DESIRED: YES
_________________________________________________________________
APPLICANT REQUESTS THAT:
His bad conduct discharge (BCD) be upgraded.
_________________________________________________________________
APPLICANT CONTENDS THAT:
Since his discharge over 15 years ago, he has been a productive citizen,
has not had any legal problems and has graduated from college. Currently,
he is pursuing a MBA in Human Resource Management. He would like to teach
and cannot with this discharge on his record. He has repaid his debt to
society many times.
In support of his request, applicant provided a personal statement, a
letter from SAF/MRBR, a copy of DD Form 293, a Shaw College transcript, and
letters of support from his teachers.
Applicant’s complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant enlisted in the Regular Air Force on 20 November 1986 and was
progressively promoted to the grade of technical sergeant. He was tried by
a general court-martial on 10 May 1988 and found guilty of wrongful use of
cocaine in violation of Article 112(a), Uniform Code of Military Justice
and received a bad conduct discharge. During the trial and pre-trail
stages, a military defense counsel represented him.
On 10 May 1988, the court sentenced the applicant to receive a bad conduct
discharge, confinement for four months, forfeiture for $250.00 per month
for four months and reduction to the grade of airman basic (E-1). On 10
January 1989, the convening authority approved the sentence as adjudged.
Because his approved sentence included a bad conduct discharge, the
applicant’s convictions were reviewed by the Air Force Court of Criminal
Review on 22 September 1988. The Court of Criminal
Review reassessed the applicant’s sentence because the trial judge erred in
admitting a Letter of Reprimand issued two days before the trial was
scheduled to begin. Having reassessed the sentence, the court approved
only that portion providing for a bad conduct discharge, four months
confinement and reduction to airman basic. On 12 December 1988, the United
States Court of Martial Appeals declined to grant the applicant’s petition
for review. The applicant was discharged on 14 August 1989.
In response to the Board’s request, the Federal Bureau of Investigation
(FBI) indicated that on the basis of the information provided, they were
unable to locate an arrest record pertaining to the applicant (Exhibit C).
_________________________________________________________________
AIR FORCE EVALUATION:
There is no legal basis for upgrading applicant’s discharge. The
appropriateness of the applicant’s sentence, within the prescribed limits,
is a matter within the discretion of the court-martial and may be mitigated
by the convening authority or within the course of the appellate review
process. The applicant had the assistance of counsel in presenting
extenuating and mitigating matters in their most favorable light to the
court and the convening authority. These matters were considered in review
of the sentence. The applicant was thus afforded all rights granted by
statute and regulation. The applicant provides no compelling rationale to
mitigate the approved dishonorable discharge given the circumstances of the
case. Finally and of considerable weight is the fact that the record
reveals the applicant was using cocaine even after being formally charged.
Hence, any suggestion he was the unfortunate victim of a one-time lapse in
judgment is unfounded.
While clemency is an option, there is no reason for the Board to exercise
clemency in this case. The applicant did not serve honorably. He was
thirty-five years old at the time of his offense and wore the rank of
technical sergeant. His peers and junior enlisted alike expected much of
him. There are consequences for criminal behavior – the military judge,
convening authority and the appellate court believed a bad conduct
discharge was an appropriate consequence that accurately characterized his
military service and his crimes. The applicant has provided no evidence of
a clear error or injustice related to the sentence.
The applicant presents no evidence to warrant upgrading of the discharge.
Nor does he demonstrate an equitable basis for relief. Yet, he wants his
DD Form 214 to reflect the same character of service as those who complete
their terms of enlistment and follow orders that separate them from friends
and family for extended periods.
ALSA/JAJM complete evaluation is attached at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to applicant on 16
April 2004 for review and comment within 30 days. 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. After a thorough review of the evidence of record, we see no evidence to
show that the applicant's discharge was erroneous or unjust. However, we
recognize the adverse impact of the discharge the applicant received; and
while it may have been appropriate at the time, we believe it would be an
injustice for the applicant to continue to suffer its effects. In
consideration of the applicant's current age, his apparent immaturity at
the time of his enlistment, and no evidence that he has had any subsequent
involvement of a derogatory nature since his separation from the Air Force,
we believe that corrective action is appropriate on the basis of clemency.
Accordingly, we recommend that his records be corrected to the extent
indicated below.
4. The applicant's case is adequately documented and it has not been
shown that a personal appearance with or without counsel will materially
add to our understanding of the issues involved. Therefore, the request
for a hearing is not favorably considered.
_________________________________________________________________
THE BOARD RECOMMENDS THAT:
The pertinent military records of the Department of the Air Force relating
to APPLICANT, be corrected to show that at the time of his discharge on 2
August 1989, he was discharged with service characterized as general (under
honorable conditions).
_________________________________________________________________
The following members of the Board considered AFBCMR Docket Number BC-2003-
02967 in Executive Session on 3 June 2004, under the provisions of AFI 36-
2603:
Mr. Gregory H. Petkoff, Panel Chair
Ms. Renee M. Collier, Member
Ms. Martha A. Maust, Member
All members voted to correct the records, as recommended. The following
documentary evidence was considered:
Exhibit A. DD Form 149, dated 17 Feb 04, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. FBI Report, dated 28 Apr 04.
Exhibit D. Letter, AFPC/DPPRS, dated 2 Apr 04.
Exhibit E. Letter, SAF/MRBR, dated 9 Apr 04.
GREGORY H. PETKOFF
Panel Chair
AFBCMR BC-2004-02967
MEMORANDUM FOR THE CHIEF OF STAFF
Having received and considered the recommendation of the Air Force
Board for Correction of Military Records and under the authority of Section
1552, Title 10, United States Code (70A Stat 116), it is directed that:
The pertinent military records of the Department of the Air Force
relating to XXXXXXX, XXXXXXX, be corrected to show that at the time of his
discharge on 2 August 1989, he was discharged with service characterized as
general (under honorable conditions).
JOE G. LINEBERGER
Director
Air Force Review Boards Agency
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