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AF | BCMR | CY2010 | BC-2010-02238
Original file (BC-2010-02238.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-02238 

COUNSEL: NONE 

 HEARING DESIRED: NO 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He was given a BCD for false swearing. He was asked if he was 
homosexual and he replied “no.” Later, it had come out that he 
was homosexual, so he was given a BCD. 

 

The applicant does not provide any evidence in support of his 
appeal. 

 

A copy of the applicant’s complete submission 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 that upgrading the 
applicant’s BCD is not appropriate. 

 

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 or rationale for upgrading his BCD to an honorable 
discharge. Rule for Court-Martial 1003 (b)(8)(c) indicates that 
a BCD “is designed as punishment for bad-conduct rather than as a 
punishment for serious offenses of either a civilian or military 
nature.” A BCD is more than merely a service characterization. 
It is defined under the Rules as a punishment for the crimes the 
applicant 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 offense committed. 

 

JAJM states the mere fact that nearly 30 years have passed since 
the applicant’s court-martial does not erase his past criminal 
conduct or make his BCD 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 
and the convening authority merely 30 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. 

 

The complete JAJM evaluation is at Exhibit C. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the applicant 
on 22 October 2010, 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. 

 

_________________________________________________________________ 

 

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-2010-02238 in Executive Session on 3 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-2010-02238: 

 

 Exhibit A. DD Form 149, dated 15 Jun 10. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFLOA/JAJM, dated 21 Sep 10. 

 Exhibit D. Letter, SAF/MRBR, dated 22 Oct 10. 

 

 

 

 

 

 Panel Chair 



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