RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2012-03053
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded.

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APPLICANT CONTENDS THAT:

His drug addiction was a disease and he should have been 
afforded the opportunity for treatment or rehabilitation rather 
than being court-martialed.

It is unfair that he is being made to suffer the effects of the 
BCD for the rest of his life.  The incident in 1982 seems to 
have overshadowed his honorable service between 1976 and 1980.

An upgrade would entitle him to Department of Veterans Affairs 
(DVA) benefits.  The DVA advised him to apply for a discharge 
upgrade based on his successful drug and alcohol treatment.

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

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STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 14 Jan 1976, and 
was honorably discharged on 13 Jan 1980.  He served four years 
of active duty.

On 2 Apr 1981, the applicant re-enlisted in the Regular Air 
Force.

On 1 Mar 1983, he was separated with a BCD.  He served 1 year, 
2 months and 29 days of active service.

On 25 Jan 2013, a request for post-service information was 
forwarded to the applicant for review and comment within 30 days 
(Exhibit E), as of this date, no response has been received by 
this office.

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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.  His court-martial took 
place in 1982 and the final action on his discharge was taken in 
1983.  The application is untimely.

On 28 Jun 1982, the applicant, then a sergeant (Sgt, E-4) pled 
guilty to two specifications of wrongfully using marijuana, one 
specification of wrongfully transferring marijuana, and one 
specification of wrongfully possessing marijuana, all in 
violation of Article 134, Uniform Code of Military Justice 
(UCMJ).

He was convicted by a special court-martial for using marijuana 
on two separate occasions, of wrongfully transferring marijuana, 
and of wrongfully possessing marijuana, in accordance with his 
guilty plea.

He was sentenced to a BCD, confinement at hard labor for 
5 months and 15 days, forfeiture of $250.00 pay per month for 
5 months, and a reduction to the grade of E-1.

On 17 Sep 1982, the Air Force Court of Military Review approved 
and affirmed the findings and sentence.  The United States Court 
of Military Appeals denied the applicant’s petition to review 
the Air Force Court of Military Review's decision making the 
findings and sentence in his case final and conclusive under the 
UCMJ.  As a result, a BCD was ordered to be executed on 25 Jan 
1983.

The applicant offers no allegation of injustice.  He simply 
requests an upgrade to his BCD because he was suffering from an 
addiction to alcohol and drugs and consequently should have been 
afforded the opportunity for treatment or rehabilitation.  He 
states that his life has been haunted by his BCD and that since 
he committed the offenses, he has been cured of his addiction to 
drugs and alcohol.  He alleges no error in the processing of the 
special court-martial conviction against him and his record of 
trial shows no error in the processing of the court-martial.  In 
addition, he pled guilty at trial.  Prior to accepting the 
applicant's guilty plea, the military judge asked him a series 
of questions.  In response, he admitted to using marijuana and 
providing marijuana to his friends.  At no time did he allege 
that his actions were a result of an addiction to drugs or 
alcohol.  The applicant, who was represented by military 
counsel, had the opportunity to demand the government prove the 
offenses against him.  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 his sentence. After his court-martial, he had an 
opportunity to present matters in clemency to the convening 
authority.  He failed to allege that he was addicted to drugs 
and alcohol and at no time did he ask for treatment or 
rehabilitation.

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.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 22 Sep 2012, a copy of the Air Force evaluation was forwarded 
to the applicant for review and comment within 30 days.  To 
date, a response has not been received (Exhibit D).

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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), our actions 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 court-martial conviction 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 considered upgrading the discharge on the 
basis of clemency; however, after considering the applicant's 
overall quality of service, the court-martial conviction which 
precipitated the discharge, the seriousness of the offenses of 
which convicted, and noting the lack of documentation pertaining 
to his post-service activities, we cannot conclude that clemency 
is warranted.  In view of the above, we cannot recommend 
approval based on the current evidence of record.

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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 this application 
in Executive Session on 7 Mar 2013, under the provisions of AFI 
36-2603:

     XXXXXXX, Panel Chair
     XXXXXXX, Member
     XXXXXXX, Member

The following documentary evidence was considered: 

    Exhibit A.  DD Form 149, dated 18 Jun 2012, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 17 Sep 2012.
    Exhibit D.  Letter, SAF/MRBR, dated 25 Sep 2012.
    Exhibit E.  Letter, AFBCMR, dated 25 Jan 2013, w/atch.




                                   
                                   Panel Chair

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