RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-01975 

 

 COUNSEL: NONE 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

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

 

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APPLICANT CONTENDS THAT: 

 

He was informed that he had to wait 10 years before he could 
request his discharge to be upgraded. He needs to have his 
discharge upgraded in order to become eligible for Department of 
Veteran Affairs (DVA) benefits. While serving in the Air Force, he 
was charged with selling $300.00 worth of caffeine pills to a 
fellow airman; caffeine pills are not a scheduled substance, nor 
were they then. The pills were tested and determined to be a legal 
substance; however, since there was an open investigation, the Air 
Force charged him with fraud and larceny (because the $300.00 used 
by an undercover agent to purchase the pills had already been 
handed off from him to another airman). His civilian and military 
attorney agreed there was no criminal basis for what he did. He 
believes since his discharge was not dishonorable it should be 
upgraded. His father retired from the Air Force as a master 
sergeant. He would like to bring honor back to their family by 
having his discharge upgraded. 

 

In support of his request, the applicant provides a copy of DD Form 
293, Application for the Review of Discharge or Dismissal from the 
Armed Forces of the United States, a copy of VA Form 21-4138, Statement in Support of Claim, a copy of a letter from the DVA, and 
a personal statement. 

 

His complete submission, with attachments, is at Exhibit A. 

 

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STATEMENT OF FACTS: 

 

The applicant was tried by special court-martial on 7 Oct 80. He 
was charged with one charge and two specifications of attempting to 
sell a dangerous drug; one charge and two specifications for 
stealing; and an additional charge with one specification for 
reckless driving. The applicant pled not guilty to all charges and 
specifications. He waived his right to present his case to a panel 
of military members and, instead, asked to be tried by the military 


judge alone. The judge found him guilty of larceny and reckless 
driving; however, he was found not guilty of stealing. The 
applicant was sentenced to be discharged from the service with a 
bad conduct discharge; to be confined at hard labor for three 
months; to forfeit $125.00 per month for six months; and to be 
reduced to airman basic. The court-martial approving authority 
subsequently approved his sentence on 1 Sep 81. The applicant 
received an under other than honorable conditions (UOTHC) discharge 
on 1 Oct 81. He served 3 years, 5 months, and 2 days. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigation (FBI) provided a copy of an Investigative Report, 
which is at Exhibit C. A copy of the FBI report was forwarded to 
the applicant for review and comment within 30 days on 4 Nov 10. 
As of this date, no response has been received by this office. 

 

A request for information pertaining to his post-service activities 
was forwarded to the applicant on 4 Nov 10 for response within 
30 days. As of this date, no response has been received by this 
office. 

 

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AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states the applicant’s record 
shows he was afforded all of the procedural rights offered by the 
court-martial and appellate process. The applicant provided 
testimony under oath during the presentencing proceedings stating 
he knew he was doing something wrongful and that he bore no ill 
will towards the Air Force for his predicament; however, he felt he 
still had something to offer the military. The military judge 
evaluated all evidence and determined the appropriate punishment 
for the offense committed was a BCD; 3 months confinement at hard 
labor; reduction to airman basic; and forfeiture of $125.00 for six 
months. The applicant requested clemency consideration after the 
trial but before the final action on the case. The applicant’s 
case was automatically referred to the Air Force Court of Military 
Review for review; however, the court affirmed the finding and 
sentence. 

 

JAJM believes granting clemency in this case would be unfair to 
those individuals who honorably served their country while in 
uniform. In addition, Congress’ intention 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. The Secretary of Veterans 
Affairs bar all rights of a veteran when the veteran was discharged 
or dismissed by reason of the sentence of a general court-marital. 
If the veterans benefits program is to have real value this should 
be enforced otherwise it would be offensive to all those who served 
honorably. 

 


The AFLOA/JAJM complete evaluation is at Exhibit D. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

The applicant responded that the charges against him seem to be a 
little harsh since the pills he was selling were legal and he did 
not make a profit on them, and the reckless driving charge was for 
not stopping his vehicle when a sergeant was yelling at him to 
stop. He states the Article 15 for lewd and lascivious acts was a 
complete farce fabricated by an airman and his roommate who were 
having a homosexual affair and were attempting to solicit him to 
join them. When the airman and his friend were caught possessing 
marijuana, they began pointing fingers to him stating he was a 
drug dealer and gay. Bottomline, he was mistreated by being 
charged and convicted. He would like to clear his name for his 
father’s sake as well his own. He believes his almost 4 years of 
service deserves an upgrade to general. 

 

The applicant’s complete submission, with attachment, is at 
Exhibit F. 

 

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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 are not 
persuaded by the evidence presented that the discharge 
characterization received by the applicant should be changed. The 
applicant's discharge was based on his trial and conviction by a 
special court-martial. While the law precludes us 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, there is nothing in the available record that would cause 
us to disturb the actions of the reviewing officials in this case. 
Therefore, the applicant’s request is not favorably considered. 

 

_________________________________________________________________ 

 

 

 

THE BOARD DETERMINES THAT: 

 


The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and 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 6 Jan 11, under the provisions of AFI 36-
2603: 

 

 , Vice Chair 

, Member 

 , Member 

 

The following documentary evidence for Docket Number BC-2010-01975 
was considered: 

 

 Exhibit A. DD Form 149, dated 25 May 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. FBI Report. 

 Exhibit D. Letter, AFLOA/JAJM, dated 4 Aug 10. 

 Exhibit E. Letter, SAF/MRBR, dated 3 Sep 10. 

 Exhibit F. Letter, Applicant, dated 25 Sep 10. 

 Exhibit G. Letter, AFBCMR, dated 4 Nov 10. 

 

 

 

 

 

 Vice Chair