RECORD OF PROCEEDINGS 

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-01174 

 COUNSEL: NONE 

 HEARING DESIRED: YES 

 

_________________________________________________________________ 

 

APPLICANT REQUESTS THAT: 

 

His Bad Conduct Discharge (BCD) be upgraded to an general (under 
honorable conditions) discharge. 

 

_________________________________________________________________ 

 

APPLICANT CONTENDS THAT: 

 

He was found guilty of one count of using marijuana and one count 
of distributing marijuana. The punishment he received was 
excessive as there was no proof of the charges. 

 

In support of his appeal, the applicant provides a DD Form 293, Application for the Review of Discharge from the Armed Forces of 
the United States. 

 

The applicant's complete submission, with attachment, is at 
Exhibit A. 

 

_________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant is a former member of the Regular Air Force who 
entered active duty on 10 May 1982 in the grade of airman basic 
(E-1). He served as an Air Cargo Specialist and was 
progressively promoted to the grade of senior airman (E-4). 

 

On 19 June 1987, the applicant was tried at a special court-
martial for one specification of wrongful use of marijuana, one 
specification of wrongful distribution of marijuana, and one 
specification of wrongful possession of Lysergic Acid 
Diethylamide (LSD), all in violation of Article 112a, Uniform 
Code of Military Justice (UCMJ). The applicant pled guilty to 
the wrongful use of marijuana, but not to the other 
specifications. He was found guilty by a military judge of 
wrongful use and distribution of marijuana, and not guilty of 
wrongful possession of LSD. Based on the findings of guilty, he 
was sentenced to a BCD, four months confinement, total forfeiture 
of all pay and allowances, and reduction to the grade of airman 
basic. On 28 August 1987, the convening authority approved the 
findings and sentence as adjudged. The Air Force Court of 
Military Review affirmed the findings and sentence on 1 December 
1987. On 25 February 1988, the United States Court of Military 


Appeals denied the applicant’s request for review of his 
conviction, 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 21 March 1988. He served 
5 years, 8 months, and 26 days on active duty with lost time for 
the period 19 June 1987 through 27 September 1987. 

 

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

 

On 21 June 2011, the applicant was given an opportunity to submit 
comments about his post service activities and in response to the 
FBI Report (Exhibit F). As of this date, this office has 
received no response. 

 

_________________________________________________________________ 

 

AIR FORCE EVALUATION: 

 

AFLOA/JAJM recommends denial. 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). 

 

JAJM states the applicant’s contention that there is no proof of 
the charges brought against him is incorrect. An examination of 
the record of trial shows that of the two specifications of which 
he was found to be guilty at trial, one of the specifications was 
due to his plea of guilty – wrongful use of marijuana. Prior to 
accepting his guilty plea, 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 pled not guilty to wrongful distribution of 
marijuana. The government’s evidence consisted of two fellow 
airmen who testified that they used drugs with the applicant or 
were aware of his drug use. One of the airmen stated that the 
applicant supplied the marijuana that they both used 
approximately three or four times. The defense also put on 


witnesses who testified that the applicant had not, in their 
experience, distributed marijuana. The applicant testified under 
oath that he did not distribute marijuana. The military judge 
was in the best position to compare the testimony and the 
credibility of the witnesses on the issue of whether the 
applicant had wrongfully distributed marijuana and the evidence 
in the Record of Trial supports the military judge’s finding. 
There is no indication that the military judge acted in an 
arbitrary or capricious manner in finding the applicant guilty of 
the offense and certainly the applicant’s contention that there 
was no proof of this specification is unfounded and incorrect. 

 

The applicant also states the BCD he received as part of his 
sentence was “excessive punishment.” After the applicant was 
found guilty of the offenses, the court 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 the 
defense also introduced some evidence in support of leniency for 
the applicant. The military judge took this information into 
consideration when imposing the applicant’s sentence. The 
inclusion of a BCD in the applicant’s sentence is legal and 
appropriate considering the offenses of which he was found 
guilty. In fact, the applicant’s sentence is much less than the 
maximum allowed for the offenses. His punishment could have 
included a dishonorable discharge, 20 years confinement, 
reduction to the grade of airman basic, and forfeiture of all pay 
and allowances. 

 

It is JAJM’s opinion that while clemency may be granted under 
Title 10 USC Section 1552 (f)(2), the applicant has not provide 
any letters of support or any documentation to show why he 
deserves an act of clemency. Clemency in this case would be 
unfair to those individuals who honorably served their country 
while in uniform. 

 

The complete JAJM evaluation is at Exhibit D. 

 

_________________________________________________________________ 

 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

 

A copy of the Air Force evaluation was forwarded to the applicant 
on 20 May 2011 for review and comment within 30 days (Exhibit E). 
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 error or injustice. We note 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 find no 
evidence which indicates the applicant’s service 
characterization, which had its basis in his conviction by 
special 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 
special court-martial conviction which precipitated the 
discharge, and the seriousness of the offense of which convicted, 
e.g., wrongful use and distribution of a controlled substance. 
Based on the evidence of record, we are not persuaded that the 
characterization of his discharge warrants an upgrade to general 
(under honorable conditions) on the basis of clemency. In view 
of the above, we conclude that no basis exists to grant favorable 
action on his request. 

 

4. The applicant's case is adequately documented and it has not 
been shown that a personal appearance with or without counsel 
will materially add to our understanding of the issue(s) 
involved. Therefore, the request for a hearing 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-2011-01174 in Executive Session on 10 November 2011, 
under the provisions of AFI 36-2603: 

 

 , Panel Chair 

 , Member 

 , Member 

 


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2011-01174 was considered: 

 

Exhibit A. DD Form 149, dated 21 Mar 11, w/atch. 

Exhibit B. Applicant's Master Personnel Records. 

Exhibit C. FBI Report. 

Exhibit D. Letter, AFLOA/JAJM, dated 11 May 11. 

Exhibit E. Letter, SAF/MRBC, dated 20 May 11. 

Exhibit F. Letter, AFBCMR, dated 21 Jun 11, w/atch. 

 

 

 

 

 

 Panel Chair