AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

 
DOCKET NUMBER:  BC-2012-00184 
COUNSEL:   
HEARING DESIRED:  NO 

IN THE MATTER OF: 
   
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
His Bad Conduct Discharge (BCD) be upgraded so he is entitled to 
receive Department of Veterans Affairs (DVA) benefits. 
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
He  joined  the  Air  Force  after  graduating  from  high  school  to 
have a better life and to serve his country.  
 
He received numerous promotions, awards, and medals. 
 
He  was  a  member  of  the  Air  Force  Boxing  team  and  became  the 
Featherweight Boxing Champion holding this title throughout his 
Air Force career.  He also won the prestigious title of Golden 
Gloves champion. 
 
In  1992  he  was  court-martialed  and  convicted  for  having  a 
positive  urinalysis  for  cocaine.    He  received  a  BCD,  and  was 
discharged  from  the  Air  Force  after  honorably  serving  for 
11 years. 
 
Prior  to  his  discharge  he  was  not  entered  into  rehabilitation 
nor did he receive counseling. 
 
He used drugs as a temporary solution to his personal problems. 
His father died while he was serving his first remote tour.  Six 
months  later  his  grandmother  died.    Soon  after,  his  mother  was 
diagnosed with terminal breast cancer, and died in 1995. 
 
Other than this isolated incident of drug use, he was an asset 
to the Air Force. 
 
In  support  of  his  request,  the  applicant  provides  a  personal 
statement  and  his  DD  Form  214,  Certificate  of  Release  or 
Discharge from Active Duty. 
 
His complete submission, with attachments, is at Exhibit A. 
 
________________________________________________________________ 
 

 

 

 
 
STATEMENT OF FACTS: 
 
On 4 Feb 1982, the applicant entered the Regular Air Force. 
 
On  16  May  1991,  his  commander  notified  him  that  he  was 
recommending  his  separation  from  the  Air  Force  under  the 
provisions  of  AFR  39-10,  Administrative  Separation  of  Airmen. 
The specific reasons for this action were: 
 
  On  or  about  22  Sep  1990  to  on  or  about  1  Apr  1991,  he  was 
derelict  in  the  performance  of  his  duties  in  that  he  willfully 
failed to perform monthly operational maintenance checks, as it 
was his duty to do, for which he received nonjudicial punishment 
on 15 Apr 1991; 
 
  On or about 16 Oct 1990 to on or about 3 Dec 1990, he did, on 
diverse  occasions,  without  authority,  fail  to  go  at  the  time 
prescribed  to  his  appointed  place  of  duty,  for  which  he  was 
counseled on 3 Dec 1990; 
 
  On  or  about  10  Jan  1991,  he  disrespected  a  superior 
commissioned  officer,  by  contemptuously  interrupting  him  while 
he  was  talking  to  him,  for  which  he  was  reprimanded  on  5  Feb 
1991;  
 
  On  or  about  4  Mar  1991,  he  did  make  and  utter  check  number 
163,  in  the  amount  of  $150.00,  for  the  purpose  of  obtaining 
something  of  value  and  did  thereafter  fail  to  maintain 
sufficient  funds  for  payment  of  such  check  in  full  upon  its 
presentment for payment, for which he was reprimanded on 29 Mar 
1991; 
 
  On or about 11 Mar 1991 and 13 mar 1991, he did make and utter 
check  numbers  171  and  173,  both  in  the  amount  of  $150.00,  for 
the  purpose  of  obtaining  something  of  value  and  did  thereafter 
fail  to  maintain  sufficient  funds  for  payment  of  such  check  in 
full  upon  its  presentment  for  payment,  as  evidenced  by  a 
dishonored check notification; 
 
  On or about 1 and 3 Apr 1991, without authority, he failed to 
go  at  the  time  prescribed  to  his  appointed  place  of  duty,  to 
wit:  Disaster  Preparedness,  for  which  he  received  nonjudicial 
punishment on 15 Apr 1991; 
 

 

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  On or about 19 Apr 1991, he was derelict in the performance of 
his  duties  in  that  he  negligently  failed  to  properly  clean  and 
dry  Ml7A2  masks  assigned  to  his  branch,  as  it  was  his  duty  to 
do, for which he was reprimanded on 22 Apr 1991; and 
 
  On or about 20 Apr 1991, without authority, he failed to go at 
the time prescribed to his appointed place of duty, for which he 
was reprimanded on 22 Apr 1991. 
 
On 16 May 1991, the applicant acknowledged receipt of the notice 
of discharge.  
 
On 8 Jul 1991, the Staff Judge Advocate (SJA) reviewed the case 
and found it legally sufficient. 
 
On 17 Jul 1991, the applicant wrongfully used cocaine. 
 
On  21  Feb  1992,  he  pled  not  guilty  to  one  specification  of 
wrongfully  using  cocaine,  in  violation  of  Article  112  (a), 
Uniform Code of Military Justice (UCMJ).  He was convicted by a 
general court-martial and was sentenced to a BCD, forfeiture of 
$500.00  pay  per  month  for  12  months,  and  reduction  to  airman 
basic (E-1). 
 
On  30  Aug  1993,  his  BCD  was  executed  via  General  Court-Martial 
Order Number 7 with an effective date of 17 Sep 1993.  He served 
11 years, 7 months, and 14 days of active service. 
 
________________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
AFLOA/JAJM  recommends  denial.  JAJM  states  upgrading  the 
applicant’s BCD is not appropriate and recommends the Board deny 
the  request  as  untimely  or  on  the  merits.    JAJM  states  that 
ordinarily,  an  applicant  must  file  an  application  within  three 
years  after  an  error  or  injustice  is  discovered  or,  with  due 
diligence, should have been discovered.  The applicant’s court-
martial took place in 1992 and the final action on his discharge 
was taken in 1993.  The application is untimely. 
 
Under  10  U.S.C.  §  1552(f),  which  amended  the  basic  corrections 
board  legislation,  the  Board’s  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  a  reviewing  authority  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  Board  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). 
 
 

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The  applicant  offers  no  allegation  of  injustice.    He  simply 
requests  an  upgrade  to  his  BCD  because  he  was  not  offered  any 
rehabilitation and his post-military drug addictions amounted to 
an  excess  of  20  years  additional  punishment.    The  applicant 
alleges no error in the processing of the general court-martial 
conviction against him and his record of trial shows no error in 
the  processing  of  the  court-martial.    The  applicant  pled  not 
guilty  at  trial;  nevertheless,  the  court  adjudged  guilt  on  the 
specification, beyond a reasonable doubt, based on the evidence 
presented  by  the  prosecution.    During  the  court-martial,  the 
prosecution introduced a drug testing report that indicated the 
applicant’s  urine  tested  positive  for  cocaine.    Additionally, 
the  court-martial  panel  heard  the  testimony  of  a  forensic 
toxicologist,  who  explained  to  the  members  the  drug  testing 
report  and  the  significance  of  a  positive  urinalysis.    The 
applicant,  who  was  represented  by  military  counsel,  had  the 
opportunity  to  challenge  the  drug  testing  report  and  cross 
examine the forensic toxicologist.  The court received evidence 
in aggravation, as well as in extenuation and mitigation, prior 
to  crafting  an  appropriate  sentence  for  the  crimes  committed.  
The  court-martial  took  all  of  these  factors  into  consideration 
when imposing the applicant’s sentence. 
 
Clemency  in  this  case  would  be  unfair  to  those  individuals  who 
honorably  served  their  country  while  in  uniform.    Congress’ 
intent  in  setting  up  the  Veterans  Benefits  Program  was  to 
express  thanks  for  veterans’  personal  sacrifices,  separations 
from family, facing hostile enemy action and suffering financial 
hardships.  All rights of a veteran under the laws administered 
by  the  Secretary  of  Veterans  Affairs  are  barred  where  the 
veteran was discharged or dismissed by reason of the sentence of 
a  general  court-martial.    This  makes  sense  if  the  benefit 
program is to have any real value.  It would be offensive to all 
those  who  served  honorably  to  extend  the  same  benefits  to 
someone  who  committed  crimes  such  as  the  applicant’s  while  on 
active duty. 
 
The complete JAJM evaluation is at Exhibit C. 
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
Counsel  reiterated  and  elaborated  on  the  applicant’s  initial 
contentions.   He stated the applicant’s BCD was harsh.  There 
was  an  opportunity  to  salvage  his  career  and  teach  him  the 
errors of his ways without imposing a penalty that he may never 
overcome.  On the basis of these issues and in all fairness this 
was  an  isolated  incident  and  not  deserving  of  such  a  harsh 
separation from the military.  Counsel refers to the applicant’s 
numerous  awards  and  that  he  served  with  distinction  for  more 
than 11 years. 
 

 

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Counsel’s complete response is at Exhibit E. 
 
________________________________________________________________ 
 
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 took notice 
of the applicant's complete submission in judging the merits of 
the case; however, we find no evidence of an error or injustice 
that  occurred  in  the  discharge  processing.    The  applicant’s 
council  argues  that  he  was  an  asset  to  the  Air  Force  and  that 
his drug use was an isolated incident.  However, the evidence of 
records  reflects  a  history  of  minor  disciplinary  infractions.  
Therefore, based on the available evidence of record, it appears 
the  discharge  was  consistent  with  the  substantive  requirements 
of  the  discharge  regulation  and  within  the  commander's 
discretionary authority.  The applicant has provided no evidence 
which  would  lead  us  to  believe  the  characterization  of  the 
service  was  contrary  to  the  provisions  of  the  governing 
regulation,  unduly  harsh,  or  disproportionate  to  the  offenses 
committed.  In the interest of justice, we considered upgrading 
the  discharge  based  on  clemency;  however,  we  do  not  find  the 
evidence  presented  is  sufficient  to  compel  us  to  recommend 
granting  the  relief  sought  on  that  basis.    Therefore,  in  the 
absence of evidence to the contrary, we find no basis upon which 
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-2012-00184 in Executive Session on 18 Jul 2012, under 
the provisions of AFI 36-2603: 
 
 
 
 

 Panel Chair 
 Member 
 Member 

5 

 
 

 
 

 
 
 
The following documentary evidence was considered in AFBCMR BC-
2012-00184: 
 
    Exhibit A.  DD Form 149, dated 5 Dec 2011, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records. 
    Exhibit C.  Letter, AFLOA/JAJM, dated 23 Apr 2012. 
    Exhibit D.  Letter, SAF/MRBR, dated 25 Apr 2012. 
    Exhibit E.  Letter, Counsel, dated 9 May 2012. 
 
 
 
 
                                    
                                   Panel Chair 

 

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