RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-05158
		COUNSEL: NONE
		HEARING DESIRED: NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

He was a dependable and professional noncommissioned officer 
(NCO).  When he made the mistakes that caused him to receive a 
BCD he was suffering from extensive mental and physical health 
conditions.  He was also going through an extremely stressful 
family matter which resulted in him having a perforated ulcer.    

His spouse took their daughter and he was unable to see her 
while stationed overseas in Korea.  Due to these circumstances, 
he was depressed and self-medicated himself with alcohol.  

He made choices that under normal conditions he would have never 
considered.  In addition, he was informed that his best friend 
of 25 years died due to a blood clot in his lungs, which added 
to his feelings of hopelessness and depression.

Despite the trials and tribulations, he has turned his life 
around and has become a responsible, productive and upstanding 
citizen in his community.  He is employed; was promoted from 
electrician to Quality Assurance Inspector and is a certified 
tax associate with H and R Block.  

In support of his appeal, the applicant provides copies of 
numerous character statements, certificates, awards, and various 
other documentation in support of his request. 

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

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STATEMENT OF FACTS:

On 17 Apr 84, the applicant entered the Regular Air Force. 
On or about 4 May 85, the applicant operated a vehicle while 
drunk.  For this misconduct, he received reduction to the grade 
of airman basic and forfeiture of $125.00 pay per month for two 
months.  The portion of punishment which extended to the 
reduction in grade was suspended until 27 Nov 85, at which time 
it was to be remitted without further action unless sooner 
vacated.

Between on or about 15 Aug 92 and on or about 28 Aug 92, the 
applicant with the intent to defraud and for the procurement of 
lawful currency, wrongfully and unlawfully uttered to the 
Merchants Community Bank three checks upon the Tyndall Federal 
Credit Union in the total amount of $1,500.00.  

On or about 26 Aug 92, the applicant with the intent to defraud 
and for the procurement of lawful currency, wrongfully and 
unlawfully uttered to the Challenger NCO Open Mess, a check upon 
the Tyndall Federal Credit Union in the total amount of $200.00.  

For the above aforementioned misconduct, the applicant received 
reduction to the grade of senior airman, forfeiture of 
$200.00 pay per month for two months and 45 days extra duty.  
The portion of punishment which extended to the forfeiture was 
suspended until 22 Apr 93, at which time it was to be remitted 
without further action unless sooner vacated.

On 19 Jun 98, the applicant was tried and convicted by a general 
court-martial for two specifications of violation of a lawful 
general regulation, in violation of Article 92, Uniform Code of 
Military Justice (UCMJ) and one specification of issuing 
worthless checks in the total amount of $5,012.87 in violation 
of Article 123a, UCMJ.  He was sentenced to a BCD, confinement 
for six months, reduction in grade to airman basic (E-1), and 
forfeiture of $500.00 pay per month for six months. 

On 28 Jul 98, the convening authority approved the findings and 
sentence that consisted of confinement for six months, reduction 
to the grade of airman basic and a BCD.  The convening authority 
deferred the adjudged and required forfeitures of pay and 
allowances from 23 Jun 98 until 28 Jul 98 and waived the 
forfeiture of $500.00 pay per month for a period of six months 
or release from confinement, whichever was sooner.  

On 29 Oct 98, the applicant was tried and convicted by a second 
court-martial for one specification of wrongful use of cocaine, 
in violation of Article 112a, UCMJ.  He was sentenced to a BCD, 
confinement for seven months and forfeiture of $400.00 pay per 
month for seven months.  

On 4 Dec 98, the convening authority approved the findings and 
sentence as to the BCD and confinement for seven months.  The 
convening authority waived the forfeitures of pay and 
allowances.  On 4 Jun 99, the Air Force Court of Criminal 
Appeals (AFCCA) approved the findings of guilty and the sentence 
for the second court-martial.  

On 7 Oct 99, the AFCCA approved and affirmed the findings and 
sentence for the first court-martial.  In addition, the United 
States Court of Military Appeals denied the applicant’s request 
for review of his second court-martial, thus making the case 
final and conclusive under the UCMJ.  As a result, his BCD was 
ordered to be executed on 18 Nov 99.  

On 2 Mar 00, the United States Court of Military Appeals denied 
the applicant’s request for review of his first court-martial, 
thus making the case final and conclusive under the UCMJ.  
Because the BCD from his second court-martial had already been 
executed, the convening authority did not execute the BCD given 
in the first court-martial.  

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial based on the application being 
untimely and also on its merits.  JAJM states that the applicant 
offers no allegation of injustice.  He simply requests an 
upgrade to his BCD based on the circumstances at the time he was 
court-martialed along with the positive progress he has made 
since his discharge.  The applicant alleges no error in the 
processing of the court-martial convictions against him and his 
record of trial shows no error in the processing of the courts-
martial.  During both courts-martial, he pled guilty to the 
charges and specifications.  Both times he was represented by 
military counsel and 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 applicant made an unsworn statement on 
his behalf asking for leniency for his daughter, mother and 
sisters who all suffered because of his mistakes.  

A BCD was and continues to be part of a proper sentence and 
properly characterizes his service.  

Granting clemency in this case, in the form of upgrading his 
discharge characterization, 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 while on active duty. 

The complete JAJM evaluation is at Exhibit C. 

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 11 Jan 13, for review and comment within 30 days 
(Exhibit D).  As of this date, this office has not received a 
response.

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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 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), 
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 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 offense of which convicted, and the documentation pertaining 
to his post-service activity we cannot conclude clemency is 
warranted.  In view of the above, we cannot recommend approval 
based on the current evidence of record.  

_________________________________________________________________




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 Docket Number    
BC-2012-05158 in Executive Session on 15 Aug 13, under the 
provisions of AFI 36-2603:

				Panel Chair
				Member
				Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 15 Oct 12, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLOA/JAJM, dated 4 Jan 13.
    Exhibit D.  Letter, SAF/MRBR, dated 11 Jan 13. 




								
								Panel Chair