RECORD OF PROCEEDINGS 

 AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

 

IN THE MATTER OF: DOCKET NUMBER: BC-2011-01753 

 

 COUNSEL: NONE 

 

 HEARING DESIRED: YES 

 

________________________________________________________________ 

 

THE APPLICANT REQUESTS THAT: 

 

His bad conduct discharge (BCD) be upgraded to general (under 
honorable conditions). 

 

________________________________________________________________ 

 

THE APPLICANT CONTENDS THAT: 

 

He believes that his diagnosis of Post-Traumatic-Stress Disorder 
(PTSD) and use of heavy narcotics for back pain led to his BCD. 
In Jun 08, he made the biggest mistake of his life and it is the 
one thing he truly regrets during the time he served in the 
military. He understands the gravity of his mistake and its 
impact on him receiving a bad conduct discharge; however, he was 
not properly represented and unable to speak in his own defense. 

 

He would like the Board to strongly consider the outside factors 
surrounding the case. When he made [his huge error in 
judgment], he was not in the right state of mind. He was 
diagnosed with PTSD after facing combat in Iraq, in 2007, and 
prescribed heavy narcotics following numerous surgeries on his 
lower back which gave him partial paralysis in his left leg. He 
was sent home numerous times by his former commander, because of 
his mental and physical state even though he was already on a 
limited work profile with a four hour maximum duty day. Also, 
prior to his investigation due to his bad judgment, he had 
official orders to be separated from the Air Force due to his 
injuries back in Oct 08 with disability. 

 

Today, he has no medical coverage, and since being released from 
appellate leave, he is facing over $20,000.00 in medical bills 
from emergency room visits because of his severe back issues. 
He joined the Air Force to serve his country because he would do 
anything for it. He has truly learned his lesson and has served 
his four month jail sentence. He wishes to be given a second 
chance considering his condition and gratefully asks the Board 
to upgrade his BCD to a general discharge so he can receive the 
care he needs. 

 

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 


27 Sep 10 discharge; extracts from his Special Court-Martial 
order, No. 21, dated 30 Apr 09, and his Medical Evaluation Board 
(MEB) documentation. 

 

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

 

________________________________________________________________ 

 

STATEMENT OF FACTS: 

 

The applicant was undergoing an MEB for a diagnosis of chronic 
low back pain due to partial pars defect L5 which was deemed 
combat related since it originated during a Security Forces 
combat training exercise while deployed to Iraq. On 22 Sep 08, 
the Informal Physical Evaluation Board (IPEB) reviewed the 
medical case file and recommended discharge with severance pay 
with a 10 percent disability rating. On 1 Oct 08, the applicant 
concurred with the IPEB's findings and a 17 Nov 08 separation 
date was recommended. 

 

The commander noted the applicant was under investigation and 
his separation order for 17 Nov 08 was revoked; he was placed on 
administrative hold for the completion of the investigation. 

 

On 11 Mar 09, the applicant, then a senior airman (E-4), was 
tried by a special court-martial at Travis Air Force Base, 
California. The court-martial was based on an incident in Apr 
08, when the applicant entered into an arrangement with a friend 
online to send the friend some Oxycodone pills and video games 
characters for $400.00. Based on the evidence, the applicant 
was eventually charged with one specification of wrongful 
distribution of a controlled substance, in violation of Article 
112a, Uniform Code of Military Justice (UCMJ). Pursuant to a 
pretrial agreement, the applicant pled guilty to the charge and 
specification and was sentenced in accordance with his plea by a 
military judge to a BCD, confinement for four months, and 
reduction to the grade of airman basic (E-1). 

 

On 30 Apr 09, the convening authority approved the finding and 
sentence as adjudged. The Air Force Court of Criminal Appeals 
affirmed the finding and sentence on 25 Jan 10. The applicant 
petitioned the United States Court of Appeals for the Armed 
Forces but that petition was denied on 7 Apr 10, making the 
findings and sentence in his case final and conclusive under 
the UCMJ. As a result, it was directed that the applicant be 
separated. 

 

The applicant was discharged, on 4 May 10, with a reason for 
separation of court-martial (other), and a bad conduct character 
of service. He was credited with 4 years, 4 months, and 26 days 
of active duty service, including the period of 11 Mar 09 – 
30 Jun 09 for lost time due to confinement. 

 


________________________________________________________________ 

 

THE AIR FORCE EVALUATION: 

 

AFPC/DPSD recommends denial, stating, in part, that the 
preponderance of evidence reflects that no error or injustice 
occurred during the disability process. 

 

The governing instruction notes that members who are in military 
confinement are not eligible for disability separation 
processing until their sentence is complete and they are placed 
in a return to duty status. The applicant's petition to appeal 
was denied on 7 April 2010, making the findings in his case 
final. His BCD was ordered to be executed on 4 May 10. 

 

The complete AFPC/DPSD evaluation is at Exhibit C. 

 

AFLOA/JAJM recommends denial, stating, in part, that upgrading 
the applicant’s BCD is not appropriate based on the merits of 
the application. 

 

The applicant alleges error or injustice in that he was "not 
properly represented and [he] was unable to speak on behalf of 
[his] own defense." A review of the Record of Trial does not 
support the applicant’s allegation of error or injustice. Prior 
to the trial, the applicant entered into a pretrial agreement. 
This agreement specified that the applicant agreed to plead 
guilty to the charge and specification, in exchange for which, 
the convening authority agreed to refer the case to a special 
court-martial. The applicant pled guilty at trial to the charge 
and specification as was agreed to in the pretrial 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 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 plead 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 an unsworn statement in 
his own behalf and the defense also introduced some documents in 
support of mitigation of the sentence. 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 BCD, confinement for one year, two-thirds 
forfeiture of pay and allowances for one year, and reduction to 
the grade of airman basic. 

 

The applicant does not provide any support for his contention 
that he was not properly represented or that he could not speak 
on his own behalf. On the other hand, the transcript of the 


trial shows that the applicant was represented throughout the 
court-martial by his two assigned military defense counsels at 
the Article 32, UCMJ, hearing and at trial. The applicant had 
the opportunity to explain to the military judge in his own 
words why he was guilty of the charge and specification. Once 
applicant's guilty plea was accepted by the military judge, the 
applicant gave an unsworn statement, verbally and in writing, as 
mitigating evidence. 

 

The complete AFLOA/JAJM evaluation is at Exhibit D. 

 

________________________________________________________________ 

 

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: 

 

Copies of the Air Force evaluations were forwarded to the 
applicant on 9 Sep 11 for review and comment within 30 days. As 
of this date, no response has been received by this office 
(Exhibit E). 

 

________________________________________________________________ 

 

THE BOARD CONCLUDES THAT: 

 

1. The applicant has exhausted all remedies provided by 
existing law or regulations. 

 

2. The application was timely filed. 

 

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 find no evidence that 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. 


 

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 the Board's understanding of the issues 
involved. Therefore, the request for a hearing is not favorably 
considered. 

 

________________________________________________________________ 

 

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-2011-01753 in Executive Session on 5 January 2012, 
under the provisions of AFI 36-2603: 

 

The following documentary evidence was considered: 

 

 Exhibit A. DD Form 149, dated 6 Dec 10, w/atchs. 

 Exhibit B. Applicant's Master Personnel Records. 

 Exhibit C. Letter, AFPC/DPSD, dated 24 Aug 10. 

 Exhibit D. Letter, AFLOA/JAJM, dated 4 Aug 11. 

 Exhibit E. Letter, SAF/MRBR, dated 9 Sep 11. 

 

 

 

 

 Chair