RECORD OF PROCEEDINGS 

 

 

COUNSEL:  NONE 

HEARING DESIRED: NO 

   DOCKET NUMBER: BC-2012-01802 

         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 
 
IN THE MATTER OF: 
 
   
   
   
 
________________________________________________________________ 
 
APPLICANT REQUESTS THAT: 
 
1. Her  deceased  son’s  bad  conduct  discharge  be  upgraded  to 
general under honorable conditions. 
 
2. Her deceased son’s rank of airman first class be restored. 
 
________________________________________________________________ 
 
APPLICANT CONTENDS THAT: 
 
As a result of an Office of Special Investigations ring, her son 
was  charged  with  possession  of  marijuana.    Additionally,  valium 
was  found  in  his  blood  but  not  in  his  possession.    He  confessed 
to  the  charges.    His  commander  agreed  to  impose  non-judicial 
punishment and discharge him. However, before the paper work was 
completed a volcano erupted.   
 
The  emergency  evacuation  subjected  her  son  to  unfair  treatment.  
Other  members  with  the  same  offense  were  offered  Article  15’s 
and discharged.   
 
Once  he  arrived  at  Hurlburt,  his  new  commander  did  not  agree 
with  the  former  commander’s  disposition.    Her  son  was  tried  by 
court-martial.    Additionally,  the  former’s  commanders  intended 
disposition was not introduced to the court-martial panel.   
 
In  support  of  the  request,  the  applicant  provides  a  personal 
statement,  the  deceased  member’s  DD  Form  214,  Certificate  of 
Release  or  Discharge  from  Active  Duty,  his  death  certificate, 
documents  from  his  master  personnel  record  and  other  supporting 
documentation. 
 
The  applicant’s  complete  submission,  with  attachments,  is  at 
Exhibit A. 
 
________________________________________________________________ 
 
 
 
 
 

 

  

  

 
STATEMENT OF FACTS: 
 
The  decedent  enlisted  in  the  regular  Air  Force  on  28  July  1988.  
Pursuant  to  his  pleas,  he  was  convicted  of  failing  to  obey  a 
lawful  order  by  possessing  drug  paraphernalia,  in  violation  of 
Article  92,  Uniform  Code  of  Military  Justice  (UCMJ);  wrongfully 
possessing  and  using  marijuana;  and  wrongfully  using  valium,  in 
violation  of  Article  112a,  UCMJ.    He  was  sentenced  to  a  bad 
conduct  discharge  and  reduction  to  the  grade  of  airman  basic.  
The  sentence  was  approved  on  22  February  1994.    He  was 
discharged 6 July 1994 with a bad conduct discharge.  
 
________________________________________________________________ 
 
AIR FORCE EVALUATION: 
 
AFLOA/JAJM  recommends  the  application  be  time  barred  or  denied 
on its merits.  Title 10 U.S.C 1552(f) limits the Boards ability 
to  correct  court-martial  records.    Specifically,  it  permits  the 
correction  of  a  record  to  reflect  actions  taken  by  a  reviewing 
authority and 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  Board  is  without 
authority  to  reverse,  set  aside,  or  otherwise  expunge  a  court-
martial conviction that occurred after 5 May 1950. 
 
The  applicant  contends  the  trial  judge  erred  by  not  allowing 
testimony  regarding  the  decedent’s  former  commander’s  indication 
that  he  would  receive  non-judicial  punishment.    The  military 
judge  ruled  that  testimony  was  inadmissible.    The  applicant 
contends  it  should  have  been  introduced.    The  decedent’s 
appellate  defense  counsel  raised  this  very  issue  to  the  United 
States Air Force Court of Military Review.  The Court determined 
the  ruling  was  proper  and  affirmed  the  conviction  and  the 
sentence.    The  defense  counsel  raised  the  same  issue  to  the 
United  States  Court  of  Appeals  for  the  Armed  Forces  and  that 
court  also  determined  the  military  judge’s  ruling  was  proper.  
The  appellate  courts  were  the  best  venue  to  consider  the  merits 
of this argument and all determined it was without merit. 
 
Rules  for  Court-Martial  1003(b)(8)(C)  states  that  a  bad  conduct 
discharge  is  designed  as  punishment  for  bad  conduct.    It  also 
indicates  that  a  bad  conduct  discharge  is  more  than  just  a 
service  characterization;  it  is  a  punishment  for  crimes 
committed while a member of the Armed Forces.  Additionally, the 
discharge  was  well  within  the  legal  limits  and  an  appropriate 
sentence for the offenses committed. 
 
Clemency  in  this  case,  in  the  form  of  upgrading  the  discharge 
characterization  would  be  unfair  to  those  individuals  who 
honorably  served  their  country  while  in  uniform.    Congress’ 
intent  in  setting  up  the  Veteran’s  Benefits  Program  was  to 
express  thanks  for  veterans’  personal  sacrifices,  separations 
from family, facing hostile enemy action and suffering financial 

 

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hardships.    All  rights  of  a  veteran  under  the  laws  are  barred 
when  the  veteran  was  discharged  or  dismissed  by  reason  of  the 
sentence  of  a  general  court-martial.      Upgrading  the  decedent’s 
discharge is not appropriate. 
 
The complete JAJM evaluation is at Exhibit C. 
 
________________________________________________________________ 
 
APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
 
The  applicant  maintains  that  similar  offenses  for  which  her  son 
was  convicted  were  so  voluminous  that  the  command  changed  the 
punishment  from  judicial  to  non-judicial  because  they  were 
losing  an  unacceptable  amount  of  valued  personnel.    During  the 
court-martial,  senior  noncommissioned  officers  swore  under  oath 
that her son’s commander intended to issue an Article 15 for his 
actions.    She  states  that  hundreds  of  other  members  with  the 
same  offense  received  Article  15s  and  went  on  with  their  lives.  
There  is  nothing  that  justifies  the  different  degrees  of 
punishment.   
 
Her  son’s  proven  value  in  applying  his  genius  IQ  saved  the  Air 
Force  millions  of  dollars.    As  a  felon,  he  was  no  longer  a 
candidate  for  government  related  employment.    He  was  only  able 
to  find  employment  as  a  computer  technician  for  a  used  car 
dealer  for  which  he  received  minimum  wage  and  no  benefits.    He 
remained drug free after his discharge.   
 
This  request  is  minimal  compensation  for  the  illegal  treatment 
he received.  It is time to correct this injustice. 
  
The applicant’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.    After  careful 
consideration  of  the  applicant’s  request  and  the  available 
evidence of record, we find no evidence which indicates that the 
decedent’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 took note of the applicant’s contention that 
others  with  the  same  offenses  for  which  her  son  was  convicted 

 

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were  offered  punishment  under  Article  15;  however,  the 
applicant’s  uncorroborated  assertions,  in  and  by  themselves  are 
not  sufficient  to  override  the  rationale  provided  by  the 
Military  Justice  Division.    As  stated  by  the  Military  Justice 
Division,  these  same  issues  were  reviewed  by  the  United  States 
Court  of  Military  Review  and  the  United  States  Court  of  Appeals 
for  the  Armed  Forces  and  both  courts  found  the  convictions  and 
the  sentence  were  proper.    Therefore,  we  agree  with  the  opinion 
and  recommendation  of  the  Military  Justice  Division  and  adopt 
its rationale as the basis for our conclusion that the applicant 
has  not  been  the  victim  of  an  error  or  injustice.    In  the 
interest  of  justice  we  considered  upgrading  the  discharge  based 
on  clemency;  however,  there  was  no  evidence  submitted  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. 
 
________________________________________________________________ 
 
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-2012-01802  in  Executive  Session  on  6  December  2012, 
under the provisions of AFI 36-2603: 
 
 
 
 
 
The following documentary evidence was considered: 
 
    Exhibit A.  DD Form 149, dated 3 Apr 12, w/atchs. 
    Exhibit B.  Applicant’s Master Personnel Records. 
    Exhibit C.  Letter, AFLOA/JAJM, dated 10 Oct 12,  
    Exhibit D.  Letter, SAF/MRBR, dated 16 Oct 12. 
    Exhibit E.  Letter, Applicant’s Response, 21 Oct 12. 
 
 
 
 
                                   Panel Chair 
 
 

, Panel Chair 
, Member 
, Member 

   
   

  

 

 

 
 

 

 

 
 
 

 
 

 

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