RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-00160
INDEX CODE: 110.00
COUNSEL: NONE
HEARING DESIRED: NO
_________________________________________________________________
APPLICANT REQUESTS THAT:
His Bad Conduct Discharge (BCD) be upgraded based on clemency.
_________________________________________________________________
APPLICANT CONTENDS THAT:
He would like to be considered for better jobs and housing. Clemency is
warranted in his case as it is an injustice for him to continue suffering
the adverse consequences of a BCD. Twenty-five years is a long time and he
is still being punished.
In support of the application, the applicant submits a DD Form 293,
Application for the Review of Discharge from the Armed Forces of the United
States and his DD Form 214, Certificate of Release or Discharge from Active
Duty.
The applicant's complete submission, with attachments, is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
Applicant enlisted in the Regular Air Force on 5 Feb 82. On 17 Jun 83, the
applicant was tried by special court-martial. Between Oct and Nov 82, he
sold marijuana and valium to another airman who was an informant for the
Air Force Office of Special Investigations (AFOSI). Based on those sales,
he was charged with three specifications of wrongful distribution of
diazepam, in violation of Article 134, Uniform Code of Military Justice
(UCMJ). He pled not guilty to the charge and its specifications and
requested to be tried by military judge alone. He was found guilty of all
specifications and sentenced to a bad conduct discharge, confinement at
hard labor for six months and forfeiture of $250 per month for six months.
On 24 Aug 83, the convening authority approved the sentence as adjudged.
On 25 Jan 84, the Air Force Court of Military Review affirmed the findings
and sentence. The applicant petitioned the United States Court of Military
Appeals for review of his conviction but his request was denied on 6 Sep
84, making the findings and sentence in his case final and conclusive under
the UCMJ. His discharge was executed on 30 Jan 85. He served 2 years, 6
months and 25 days on active duty with 152 days of lost time due to
confinement.
The remaining relevant facts pertaining to this application, extracted from
the applicant’s military records, are contained in the letter prepared by
the appropriate office of the Air Force at Exhibit D.
_________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial.
Applicants must file for correction of military records within three years
after an error or injustice is discovered. The applicant’s court-martial
occurred in 1983; therefore, the application is untimely. In addition, the
Board is without authority to reverse, set aside, or otherwise expunge a
court-martial conviction that occurred on or after 5 May 50 (effective date
of the UCMJ).
While clemency may be granted, the applicant offers no justification for
his request nor has he submitted any basis for an upgrade of his discharge.
Rules for Courts-Martial states that a bad conduct discharge “is designed
as punishment for bad-conduct rather than as a punishment for serious
offenses of either a civilian or military nature.” A bad conduct discharge
is more than merely a service characterization, but it is also a punishment
for crimes committed while a member of the armed forces. The applicant’s
sentence was well within the legal limits and was an appropriate punishment
for the offenses committed.
The mere fact that 25 years have passed since his court-martial, or that
the BCD may have caused difficulties for him does not erase his past
criminal conduct or render the punitive discharge any less appropriate for
the offenses.
JAJM opines clemency in this case would be unfair to those individuals who
honorably served their country while in uniform and offensive to extend the
same benefits and privileges to someone guilty of distributing illegal
drugs to other service members.
The complete JAJM evaluation is at Exhibit D.
_________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 3 Apr
09 for review and comment within 30 days. As of this date, this office has
received no response (Exhibit D).
_________________________________________________________________
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 and adopt its rationale as the basis for the conclusion that
the applicant has not been the victim 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.
_________________________________________________________________
The following members of the Board considered this application in Executive
Session on 18 August 2009, under the provisions of AFI 36-2603:
Mr. Michael J. Novel, Panel Chair
Mr. Grover L. Dunn, Member
Mr. Dick Anderegg, Member
The following documentary evidence was considered in AFBCMR BC-2009-00160:
Exhibit A. DD Form 149, dated 7 Mar 09, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 18 Mar 09.
Exhibit D. Letter, SAF/MRBR, dated 3 Apr 09.
MICHAEL J. NOVEL
Panel Chair
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