RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-01179
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge.
_________________________________________________________________
APPLICANT CONTENDS THAT:
It has been 20 years since his discharge.
The applicant's complete submission is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 16 May 86, the applicant contracted his initial enlistment in the Regular Air Force. He was progressively promoted to the grade of airman first class; he was demoted to the grade of airman basic on 28 Feb 89.
The applicant was tried by general court-martial on 9-10 Jan 89. He was charged with four specifications of wrongful distribution of Lysergic Acid Diethylamide (LSD) and marijuana and one specification of attempted wrongful distribution of LSD and marijuana. He pled guilty to the two charges and three specifications. He was found guilty of all charges and specifications and sentenced to a bad conduct discharge (BCD), confinement for 48 months, forfeiture of all pay and allowances and a reduction in rank to the grade of airman basic. On 28 Feb 89, the convening authority approved the BCD, confinement for 30 months and forfeiture of all pay and allowances and reduction to airman basic. On 3 May 89, the Air Force Court of Military Review affirmed the findings and sentence. He did not appeal to the United States Court of Military Appeals. He was discharged on 19 Dec 89. He served 2 years, 7 months and 24 days on active duty.
Pursuant to the Boards request, the Federal Bureau of Investigation provided an investigative report which is attached at Exhibit C.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states that because 20 years has passed since his court-martial it does not negate his past criminal conduct or make his BCD any less appropriate for the offenses he committed. Overturning his punishment would now require the Board to substitute its judgment for that rendered by the court and convening authority almost 20 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.
While clemency may be granted, it is not warranted in the applicants case. He has not submitted any documentation or references attesting to any improvement in behavior in the intervening years. The Rule for Courts-Martial states that a BCD is designed as punishment for bad conduct rather than as a punishment for a serious offense of either a civilian or military nature. A BCD is more than merely a service characterization, but is defined as a punishment for crime the applicant committed while a member of the armed forces. His sentence to a BCD, confinement, forfeiture and demotion was well within the legal limits and was an appropriate punishment for the offenses committed.
Additionally, to grant 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 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 administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of sentence of general court-martial.
The AFLOA/JAJM complete evaluation is at Exhibit D.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 8 May 09, for review and comment within 30 days. As of this date, no response has been received by this office.
On 21 May 09, the Board staff requested the applicant provide documentation pertaining to his activities since leaving military service. As of this date, no response has been received by this office (Exhibit F).
On 10 Jun 09, the Board staff forwarded a copy of the investigative report to the applicant for review and comment within 30 days. As of this date, no response has been provided by the applicant (Exhibit G).
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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 an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and the recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof of the existence of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.
_________________________________________________________________
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.
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The following members of the Board considered AFBCMR Docket Number BC-2009-01179 in Executive Session on 21 Jul 09 under the provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2009-01179 was considered:
Exhibit A. DD Form 149, dated 27 Feb 09.
Exhibit B. Applicant's Master Military Personnel Records.
Exhibit C. FBI Investigative Report.
Exhibit D. Letter, AFLOA/JAJM, dated 28 Apr 09.
Exhibit E. Letter, SAF/MRBR, dated 8 May 09.
Exhibit F. Letter, SAF/MRBC, dated 21 May 09, w/atch.
Exhibit G. Letter, SAF/MRBC, dated 10 Jun 09, w/atch.
Panel Chair
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