RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2009-00197
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:
During wartime, he served his country in an outstanding manner.
He paid his debt to society and has been a model citizen in his
community. He needs this upgrade to assist him in obtaining help
for his medical problems through the Department of Veterans
Affairs. He believes he deserves a chance like any other veteran
or will his service to his country go unnoticed.
Applicant's complete submission is at Exhibit A.
_________________________________________________________________
STATEMENT OF FACTS:
On 10 May 1971, the applicant contracted his initial enlistment
in the Regular Air Force. He was progressively promoted to the
grade of technical sergeant having assumed the grade effective
and with a date of rank of 3 Oct 85.
On 2 May 1985, he was tried by a general court-martial for 13
specifications of filing false claims against the United States
government in violation of Article 132, Uniform Code of Military
Justice (UCMJ). He pled guilty to 12 of the 13 specifications
and was sentenced to a dishonorable discharge, confinement for 24
months, forfeiture of $500.00 pay per month for 24 months,
reduction to the grade of airman first class and a fine in the
amount of $3200.00. On 8 July 1985, the convening authority
approved the sentence as adjudged. On 6 September 1985, the
findings of guilty and sentence were affirmed by the Air Force
Court of Military Review. On 20 November 1985, the United States
Court of Military Appeals denied the applicant's petition for
review of the conviction, therefore, the findings and sentence in
the applicant's case became final and conclusive under the UCMJ.
He was discharged on 22 May 1986. He served 10 years and
6 months and 27 days of total active service.
Pursuant to the Boards request, the Federal Bureau of
Investigation (FBI) provided a copy of an Investigative Report,
which is at Exhibit C.
On 9 July 2009, the Board staff requested the applicant provide
documentation pertaining to his activities since leaving military
service. He has not responded (Exhibit F).
_________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends the requested relief be denied and states
the mere fact that 24 years have passed since the applicant's
court-martial does not erase his past criminal conduct or make
his dishonorable discharge any less appropriate for the offenses
he committed. To overturn this punishment now would require the
Board to substitute its judgment for that rendered by the court
over 24 years ago when the facts and circumstances were fresh. A
dishonorable discharge was and continues to be part of a proper
sentence and properly characterizes his service.
The complete AFLOA/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 8 May 2009 for review and comment within 30 days. As of this
date, there has been no response 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 error or injustice. We note 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 also find no
evidence which indicates the applicants service
characterization, which had its basis in his conviction by a
general court-martial and was a part of a pre-trial agreement and
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 applicant's overall
quality of service, the general court-martial conviction which
precipitated the discharge, and the seriousness of the offense
for which convicted. Based on the evidence of record, we cannot
conclude that clemency is warranted. There being insufficient
evidence to the contrary, the Board finds no compelling basis to
recommend granting the relief sought.
_________________________________________________________________
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 AFBCMR Docket
Number BC-2009-00197 in Executive Session on 24 September 2009
under the provisions of AFI 36-2603:
, Chair
, Member
, Member
The following documentary evidence was considered:
Exhibit A. DD Form 149, dated 10 Jan 09, w/atch.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. FBI Investigative Report.
Exhibit D. Letter, AFLOA/JAJM, dated 23 Apr 09.
Exhibit E. Letter, SAF/MRBR, dated 8 May 09.
Exhibit F. Letter, AFBCMR, dated 9 Jul 09.
Panel Chair
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