RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2010-04580 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: NO 

 

________________________________________________________________ 

 

THE APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded to honorable with an 
effective date of separation of 15 Feb 80, in the grade of 
sergeant (Sgt/E-4). 

 

________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

He believes that his service-connected Post-Traumatic-Stress 
Disorder (PTSD) led to his discharge. Following his involvement 
in a fatal accident, in which his passenger was killed, he 
started showing symptoms of PTSD and should have been treated 
for his condition. He was arrested, charged and released; and 
then, subsequently court-martialed for possession of marijuana. 

 

He should have been released at his expiration term of service 
(ETS) of 15 Feb 80. 

 

In support of his appeal, the applicant provides a personal 
statement; a copy of his DD Form 214, Certificate of Release or 
Discharge from Active Duty, issued in conjunction with his 
30 Jun 81 discharge; extracts from his discharge correspondence, 
and Summary of Trial. 

 

The applicant’s complete submission, with attachments, is at 
Exhibit A. 

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

On 22 April 1980, the applicant, then a sergeant (E-4), was 
tried at a general court-martial at Grissom Air Force Base, 
Indiana. In October 1979, the applicant was found to have 
possessed and transferred controlled substances on the flight 
line. He was eventually charged with two specifications of 
wrongful transfer of marijuana and one specification of wrongful 
possession of marijuana, al1 in violation of Article 134, 
Uniform Code of Military Justice (UCMJ). One of the 
specifications of wrongful transfer of marijuana was alleged to 


be of 120.6 grams of marijuana. The applicant pled guilty to 
the charge and specifications and was sentenced by a military 
judge to a bad conduct discharge, six months confinement at hard 
labor and reduction to the grade of airman first class (E-3). 
On 27 June 1980, the convening authority approved the findings 
and sentence as adjudged. The Air Force Court of Military 
Review affirmed the findings and sentence on 10 February 1981. 
The applicant's petition to the United States Court of Military 
Appeals for review of his conviction was denied on 14 May 1981, 
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 24 June 1981. 

 

Pursuant to the Board’s request, the Federal Bureau of 
Investigation, Clarksburg, West Virginia, provided an 
investigative report, which is attached at Exhibit C. 

 

The applicant’s DD Form 214 was administratively corrected to 
change Item 12a, Date entered AD this period: 1976 Feb 17; 
Item 12c, Net Active Service this Period: 05 years 04 months 
14 days; Item 12d, Total Prior Active Service: 03 years 
00 months 04 days; and in Item 18, Remarks, Continuous honorable 
active military service from 13 Feb 73 – 16 Feb 76. 

 

________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial, stating, in part, that upgrading 
the applicant’s BCD is not appropriate and his request should be 
denied as untimely or on the merits. 

 

The applicant has identified as errors or injustices the facts 
that: he did not receive treatment from the Air Force for PTSD 
after a serious car accident in September 1979; and his court-
martial is invalid due to the fact that he should have ended his 
term of service in February 1980 (two months before the court-
martial took place). We cannot address the allegation of lack 
of treatment. The applicant did not include any documentation 
in the application to show a diagnosis of PTSD and there is no 
mention in the Record of Trial to substantiate the applicant's 
claim of having been involved in a car accident. JAJM notes 
that the Record of Trial includes a memorandum from the Chief of 
Mental Health Services, dated 23 June 1980. The memorandum 
states that "[t]here is no evidence of mental defect, emotional 
illness, or psychiatric disorder ... of sufficient severity to 
warrant disposition through military medical channels." The 
Record of Trial does not support the applicant's contention that 
he should have been discharged at the expiration of his term of 
service in February 1980, rather than being court-martialed in 
April 1980. His transcript of the trial shows that the defense 
did not challenge the jurisdiction of the military court to try 
the offenses. The military judge specifically found that the 
court had jurisdiction over all of the offenses charged and 


concluded that "the military interest in deterring these and 
similar offenses is distinct from and greater than, that of 
civilian society and that the distinct military interest can be 
vindicated adequately only in a trial by court-martial." In 
addition, the Staff Judge Advocate noted, in his Review of Trial 
by Court-Martial, that the applicant had enlisted for a term of 
four years commencing on 17 February 1976. The Staff Judge 
Advocate stated that military law (U.S. v. Smith, 4 MJ. 265 
(1978)) would allow the Air Force to preserve court-martial 
jurisdiction over an individual, such as the applicant, who is 
nearing the expiration of his term of service, by: preferring 
charges before the date of expiration and informing the 
individual of the action. The Staff Judge Advocate noted that 
the applicant’s commander notified the applicant that charges 
had been preferred against him on 18 January 1980. JAJM notes 
the rule of military law followed in the applicant's case is the 
same rule today. In fact, pursuant to Air Force Instruction 51-
201, Administration of Military Justice paragraph 3.3.4, airmen may be 
retained beyond the expiration of their term of service in 
anticipation of the preferral of charges by notifying the 
Military Personnel Flight in writing. 

 

Beyond the allegations of error and injustice raised by the 
applicant, an examination of the record of trial shows no error 
in the processing of the court-martial. The applicant pled 
guilty at trial to the charge and specifications. 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. 

 

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 
crimes committed. The applicant made a sworn statement in his 
own behalf and requested that his defense attorney argue for a 
dishonorable discharge in lieu of receiving confinement. The 
military judge took 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 15 years, forfeiture of all pay and allowances, 
and reduction to the grade of airman basic. 

 

The complete AFLOA/JAJM evaluation, with attachments, is at 
Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 


A copy of the Air Force evaluation was forwarded to the 
applicant on 25 March 2011 for review and comment within 
30 days. As of this date, no response has been received by this 
office (Exhibit E). 

 

In his response, the applicant indicates that he had provided 
all of the evidence requested in support of his claim. 

 

In support of his appeal, the applicant provides a newspaper 
clipping and a copy of his Honorable Discharge certificate, 
rendered for the periods of service of 12 Feb 73 and 16 Feb 76, 
respectively. 

 

The applicant’s complete response, with attachments, is at 
Exhibit F. 

 

On 19 April 2011, a copy of the FBI report was forwarded to the 
applicant for comment. At that time, he was also invited to 
provide additional evidence pertaining to his activities since 
leaving the service (Exhibit G). 

 

________________________________________________________________ 

 

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 error or injustice. We note that 
this Board is without authority to reverse, set aside, or 
otherwise expunge a court-martial conviction. Rather, in 
accordance with Title 10, United States Code, Section 1552(f), 
actions by this Board are limited to corrections to the record 
to reflect actions taken by the reviewing officials and action 
on the sentence of the court-martial for the purpose of 
clemency. We also find no evidence which indicates the 
applicant’s service characterization, which had its basis in his 
conviction by general court-martial and was a part of the 
sentence of the military court, was improper or that it exceeded 
the limitations set forth in the Uniform Code of Military 
Justice (UCMJ). We have considered the applicant's overall 
quality of service, the general court-martial conviction which 
precipitated the discharge, and the seriousness of the offense 
to which convicted, and having found no error or injustice with 
regard to the actions that occurred while the applicant was a 
military member, we conclude that no basis exists to grant 
favorable action on his request. In addition, based on the 
evidence of record, we are not persuaded the characterization of 
the applicant’s discharge warrants an upgrade to general on the 
basis of clemency. Therefore, based on the available evidence 


of record, we find no basis upon which to favorably consider 
this application. 

 

________________________________________________________________ 

 

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 AFBCMR Docket 
Number BC-2010-04580 in Executive Session on 11 August 2011, 
under the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 30 Nov 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. FBI Report of Investigation. 

 Exhibit D. Letter, AFLOA/JAJM, dated 24 Feb 11. 

 Exhibit E. Letter, SAF/MRBR, dated 25 Mar 11. 

 Exhibit F. Letter, Applicant, dated 7 Apr 11. 

 Exhibit G. Letter, AFBCMR, dated 19 Apr 11. 

 

 

 

 

 Panel Chair