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 applicants 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
applicants 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
Records (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 JAJMs 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
applicants 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 applicants 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 applicants 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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