RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-03277 

COUNSEL: NONE 

 HEARING DESIRED: NO 

 

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APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded. 

 

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APPLICANT CONTENDS THAT: 

 

He was in the military for eight years with no prior offenses and 
no evidence of marijuana use. 

 

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: 

 

On 7 September 1987, the applicant, then a staff sergeant (E-5), 
was tried at a general court-martial for one specification of 
wrongfully using cocaine on diverse occasions in violation of 
Article 112a, Uniform Code of Military justice (UCMJ). Pursuant 
to pretrial agreement, the applicant pled guilty to the charge 
and its specification and was sentenced by a panel of officers to 
a bad conduct discharge, confinement for 12 months, forfeiture of 
$150.00 pay per month for 12 months, and reduction in grade to 
airman basic (E-1). On 28 December 1987, the convening authority 
approved the findings and sentence as adjudged. The Air Force 
Court of Military Review affirmed the findings and sentence on 
17 February 1988. The applicant petitioned the United States 
Court of Military Appeals for review of his conviction, but was 
denied on 2 June 1988, making the findings and sentence in his 
case final and conclusive under the UCMJ. As a result the 
applicant’s discharge was ordered to be executed on 15 July 1988. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigation (FBI), Clarksburg, WV, provided a copy of an 
Investigation Report (Exhibit C). 

 


On 8 December 2010, the applicant was given an opportunity to 
respond to the FBI Report (Exhibit F). As of this date, this 
office has received no response. 

 

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AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. JAJM states the record of trial 
shows no error or injustice in the processing of the applicant’s 
court-martial. Prior to the trial, he entered into a pre-trial 
agreement. This agreement specified that the applicant agreed to 
plead guilty to the charge and specification in exchange for the 
convening authority agreeing not to approve a sentence that 
exceeded a bad conduct discharge and confinement for one year and 
one day. The applicant pled guilty at trial to the charge and 
specification as was agreed to in the pre-trial agreement. Prior 
to accepting his guilty plea, as evidenced by the record of 
trial, the military judge ensured the applicant understood the 
meaning and effect of his plea and the maximum punishment that 
could be imposed if his guilty plea was accepted by the court. 
The military judge explained the elements and definitions of the 
offenses to which the applicant pled guilty, and the applicant 
explained in his own words why he believed he was guilty. The 
applicant also stipulated to the facts of his drug use in detail 
as part of his plea. 

 

On the court’s acceptance of the applicant’s guilty plea, it 
received evidence in aggravation, as well as in extenuation and 
mitigation, prior to crafting an appropriate sentence for the 
crime committed. The applicant made an unsworn statement in his 
own behalf and the defense also introduced some other supporting 
evidence. The panel of officer members took all of these factors 
into consideration when imposing the applicant’s sentence. The 
imposed sentence was below the maximum possible sentence of a 
dishonorable discharge, confinement for five years, total 
forfeiture of all pay and allowances, and reduction to the grade 
of airman basic (E-1). 

 

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, and clemency is not warranted. 
The applicant does not provide any support for the idea that he 
has been rehabilitated since the time of his court-martial 
23 years ago. He does not dispute the finding of the court 
regarding his cocaine use, nor does he explain how his bad-
conduct discharge was somehow unjust. The inclusion of a bad-
conduct discharge in the applicant’s sentence was well within the 
legal limits and was part of an appropriate punishment for the 
offense as committed by a noncommissioned officer. Nothing 
provided by the applicant in his appeal erases his past criminal 
conduct and he has certainly not provided anything to support 
action by the Board now to overturn the bad-conduct discharge. 
To overturn this punishment now would require the Board to 
substitute its judgment for that rendered by the court and the 
convening authority 23 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. 

 

It is JAJM’s opinion that upgrading the applicant’s bad-conduct 
discharge is not appropriate. 

 

The complete JAJM evaluation is at Exhibit B. 

 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the applicant 
on 5 November 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-2010-03277 in Executive Session on 7 June 2011, under 
the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 

The following documentary evidence was considered for AFBCMR 
Docket Number BC-2010-03277: 

 

 Exhibit A. DD Form 149, dated 26 Aug 10. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. FBI Report. 

 Exhibit D. Letter, AFLOA/JAJM, dated 29 Oct 10. 

 Exhibit E. Letter, SAF/MRBR, dated 5 Nov 10. 

 Exhibit F. Letter, AFBCMR, dated 8 Dec 10. 

 

 

 

 

 

 Panel Chair