RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2009-01049 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded to honorable. 

 

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APPLICANT CONTENDS THAT: 

 

He was not provided an opportunity for rehabilitation and was 
kicked out of the Air Force after nine years of honorable 
service. He has turned his life around and would like the BCD 
removed from his records. 

 

In support of the appeal, the applicant provides two certificates 
of completion. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

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STATEMENT OF FACTS: 

 

The applicant enlisted in the Regular Air Force as an airman 
basic on 17 Apr 82, for a term of four years. On 7 Jun 82, the 
applicant was tried by general court-martial with one 
specification of wrongfully using cocaine, and one specification 
of wrongfully using marijuana in violation of Article 112, 
Uniform Code of Military Justice (UCMJ). 

 

The applicant pled and was found guilty of both charges and 
specifications by a military judge. He was sentenced to a BCD, 
confinement for 10 months, forfeiture of $200.00 pay per month 
for 10 months, and reduction to the grade of airman basic (E-1). 

 

On 18 Feb 83, the Air Force Court of Military Review affirmed the 
findings and approved the sentence as adjudged. 

 


The applicant petitioned the United States Court of Military 
Appeals for review of the conviction, but it was denied on 
21 Jan 93. This made the findings and sentence in the 
applicant’s case final and conclusive under the UCMJ. On 
8 Mar 93, the applicant’s discharge was executed. 

 

He served a total of 9 years, 10 months, and 8 days of active 
service. 

 

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AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states, in part, the 
applicant did not identify an error or injustice related to his 
prosecution or the sentence. 

 

An examination of the record of trial reveals no error in the 
processing of the court-martial. Prior to the trial, the 
applicant entered into a pretrial agreement. The agreement 
specified the applicant agreed to plead guilty to the charges and 
specifications, in exchange for which the convening authority 
agreed not to approve a sentence that exceeded a BCD, 10 months 
confinement, forfeiture of $250.00 pay per month for 10 months, 
and reduction to E-1. 

 

While clemency may be granted under Title 10 U.S.C. 1552(f)-(2), 
the applicant provided very little justification for his request 
and clemency is not warranted in this case. The applicant’s 
certificates of accomplishment provide scant support for action 
by the Board in light of the seriousness of the offenses he 
committed. The mere fact the applicant says he feels he should 
have received a chance at rehabilitation does not erase his past 
criminal conduct, does not make his BCD any less appropriate for 
the offenses he committed and certainly does not weigh in favor 
of Board action now to undo that part of the punishment. 

 

To overturn this punishment now would require the Board to 
substitute its judgment for that rendered by the court and the 
convening authority almost seven years ago when the facts and 
circumstances were fresh. A BCD 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 Veterans’ Benefit Program was to express 
thanks for veterans’ personal sacrifices, separations from their 
family, facing hostile enemy action and suffering financial 
hardships. 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. This makes sense if the benefit program 
is to have any real value. It would be offensive to all those 


who served honorably to extend the same benefits to someone who 
committed a crime such as the applicant’s while on active duty. 

 

The complete AFLOA/JAJM evaluation is at Exhibit C. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the applicant 
on 28 Aug 09, for review and comment within 30 days. As of this 
date, no response has been received by this office (Exhibit D). 

 

A request for post-service documentation was mailed to the 
applicant on 20 Oct 09, for response within 30 days, and to date 
no reply has been received (Exhibit E). 

 

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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 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 (OPR) and adopt 
its rationale as the basis for our conclusion that the applicant 
has not been the victim of an error or injustice. We find no 
evidence which indicates the applicant’s BCD, which had its basis 
in his conviction by a general court-martial and was a part of 
the sentence of the military court, was improper or that it 
exceeded the limitations set forth in the UCMJ. While we are 
precluded by law from reversing a court-martial conviction, we 
are authorized to correct the records to reflect actions taken by 
reviewing officials and to take action on the sentence of a 
military court based on clemency. However, because of the 
limited documentation concerning his activities since leaving the 
service, we are not inclined to recommend upgrading his discharge 
based on clemency at this time. In view of the foregoing, and in 
the absence of sufficient evidence to the contrary, we find no 
compelling basis to recommend granting the relief sought in this 
application. 

 

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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 Docket Number BC-
2009-01049 in Executive Session on 3 Dec 09, under the provisions 
of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 8 Jun 09, w/atch. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 4 Aug 09. 

 Exhibit D. Letter, SAF/MRBR, dated 28 Aug 09. 

 Exhibit E. Letter, AFBCMR, dated 20 Oct 09, w/atch. 

 

 

 

 

 Panel Chair