RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-02228 

COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded so he can receive 
Department of Veteran Affairs (DVA) benefits. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

His service was honorable, except for 11 months of his 6-year 
career. Part of the reason he went absent without leave (AWOL) 
was due to his request for emergency leave being denied. He 
requested a discharge. His life has now changed, but he is still 
being penalized. 

 

In support of his appeal, the applicant provides a personal 
letter. 

 

A copy of the applicant’s complete submission, with attachment, 
is at Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The relevant facts pertaining to this application are contained 
in the letter prepared by the appropriate office of the Air 
Force. Accordingly, there is no need to recite these facts in 
this Record of Proceedings. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states there is no way to 
accurately ascertain the facts of the military justice action 
undertaken against the applicant, as his personnel records could 
not be located and are believed to have been destroyed in the 
National Personnel Records Center fire of 1973. The applicant 
complains that he was discharged with a BCD on 23 June 1973. He 
asserts his conviction was for an unauthorized absence of 
11 months during the Vietnam War. Available military justice 
records indicate he was tried by general court-martial and 


received a sentence that required appellate review under Article 
66, Uniform Code of Military Justice (UCMJ). By implication, 
that sentence either included a punitive discharge, which the 
applicant states was a BCD, confinement for a year or more, or 
both. Consequently, there is no way to either corroborate or 
refute the representations in the application or accompanying 
letter. However, it is noted that his letter indicates that he 
absented himself without authority, remained absent for 
11 months, and voluntarily turned himself in to military 
authorities. 

 

JAJM indicates that under Title 10, United States Code (USC), 
Section 1552(f), which amended the basic corrections board 
legislation, the Air Force Board for Correction of Military 
Record’s (AFBCMR) ability to correct records related to courts-
martial, is limited. Specifically, Section 1552(f)(1) permits 
the correction of a record to reflect actions taken by reviewing 
authorities under the UCMJ. Additionally, Section 1552(f)(2) 
permits the correction of records related to action on the 
sentence of courts-martial for the purpose of clemency. Apart 
from these two limited exceptions, the effect of Section 1552(f) 
is that the AFBCMR is without authority to reverse, set-aside, or 
otherwise expunge a court-martial conviction that occurred on or 
after 5 May 1950 (the effective date of the UCMJ). 

 

It is JAJM’s opinion that while clemency may be granted under 
Title 10 USC Section 1552 (f) (2), the applicant provides no 
justification for his request. A sentence to a BCD would have 
been within the maximum authorized punishment for such an 
offense. To overturn this punishment now would require the Board 
to substitute its judgment for that rendered by the court and the 
convening authority 37 years ago when the facts and circumstances 
were fresh. Additionally, clemency in this case would be unfair 
to those individuals who honorably served their country while in 
uniform. 

 

JAJM indicates that not only did the applicant fail to allege an 
error or injustice; he provided no excuse or reason for his delay 
in submitting an application in over 34 years. Accordingly, they 
recommend the Board deny the applicant’s requested relief as 
untimely, but if the Board considers waiver of the time 
limitation appropriate, they recommend the Board deny the 
application on its merits. 

 

The complete JAJM evaluation is at Exhibit B. 

 

_________________________________________________________________ 

 


APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the applicant 
on 11 February 2011, for review and comment within 30 days. As 
of this date, this office has received no response. 

 

_________________________________________________________________ 

 

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 injustice. After 
thoroughly reviewing the evidence of record, we find no evidence 
to show that the applicant’s discharge as a result of his 
conviction by court-martial was erroneous or unjust. In view of 
the foregoing, we agree with the opinion and recommendation of 
the Military Justice Division and adopt the rationale expressed 
as the basis for our decision that the applicant has failed to 
sustain his burden of proof of the existence of either an error 
or an injustice. Therefore, based on the evidence of record, we 
find no basis to recommend granting the relief sought in this 
application. Furthermore, we do not find clemency is appropriate 
in this case since the applicant has not provided any evidence 
concerning his post-service activities. Therefore, the 
applicant’s request is not favorably considered. 

 

_________________________________________________________________ 

 

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-2010-02228 in Executive Session on 24 March 2011, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 


 

The following documentary evidence was considered in connection 
with AFBCMR Docket Number BC-2010-02228: 

 

Exhibit A. DD Form 149, dated 4 Jun 10, w/atch. 

Exhibit B. Letter, AFLOA/JAJM, not dated. 

Exhibit C. Letter, SAF/MRBR, dated 11 Feb 11. 

 

 

 

 

 

 Panel Chair