RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2012-05572
COUNSEL: NO
HEARING DESIRED: NO
________________________________________________________________
APPLICANT REQUESTS THAT:
His Bad Conduct Discharge (BCD) be upgraded so that he may
receive medical benefits.
________________________________________________________________
APPLICANT CONTENDS THAT:
He was misled and misrepresented by his defense counsel. He was
overpaid by the Air Force and for three months he received no
money in his paycheck due to the Air Force taking the money for
repayment. Due to this, he was unable to pay his bills and
support his family. He was advised by his commander to go to
Air Force Aid and Red Cross for assistance but he did not
qualify because he was not married. Because of this, he made
the bad choice to distribute marijuana.
The applicants complete submission, with attachments, is at
Exhibit A.
________________________________________________________________
STATEMENT OF FACTS:
The applicants military personnel records indicate he enlisted
in the Air Force Reserve on 28 Mar 79 in the Delayed Entry
Program and entered the Regular Air Force on 9 Jan 84.
On 10 Apr 85, the applicant pled guilty and was found guilty of
three specifications of wrongful distribution of marijuana, in
violation of Article 112a, Uniform Code of Military Justice
(UCMJ), and was sentenced at a Special Court-Martial to a BCD,
confinement for three months, forfeiture of $413 pay per month
for three months, and a reduction to the grade of airman basic
(E-1).
On 10 May 85, the convening authority approved the finding and
sentence. On 20 Jun 85, the Air Force Court of Criminal Appeals
approved the finding of guilty and the sentence and the BCD was
executed on 19 Jun 86.
On 22 Aug 13, a request for post-service information was
forwarded to applicant for comment within 30 days. As of this
date, no response has been received by this office (Exhibit E).
The remaining relevant facts pertaining to this application are
described in the letter prepared by the Air Force office of
primary responsibility which is attached at Exhibit C.
________________________________________________________________
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denying the applicants request due to
untimeliness or on its merits indicating the applicant has not
supplied any evidence of injustice. Also, the applicant alleges
no error in the processing of the court-martial conviction nor
does his record of trial reflect any errors. The applicants
sentence was well within legal limits and the BCD is a proper
sentence and properly characterizes his service. There is
nothing in the record that supports the applicants allegation
of ineffective counsel. He pled guilty to the charge and
specifications and had the opportunity to demand the government
prove the offenses against him. He made an unsworn statement on
his behalf, admitting that he made a mistake by distributing
marijuana.
Additionally, the applicants application is untimely. An
application must be filed within three years after an error or
injustice is discovered or, with due diligence, should have been
discovered. The court-martial and final action on the case
occurred in 1985.
A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.
________________________________________________________________
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 24 Feb 13 for review and comment within 30 days.
As of this date, no response has been received by this office
(Exhibit D).
________________________________________________________________
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 an 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 which indicates the applicants
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
have considered the applicants overall quality of service, the
court-martial conviction which precipitated the discharge, the
seriousness of the offenses to which convicted, and the
documentation pertaining to the applicants post-service
activities. Based on the evidence of record, we cannot conclude
that clemency is warranted in this case. Therefore, we find no
basis upon which to favorably consider this application.
________________________________________________________________
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-2012-05572 in Executive Session on 7 Oct 13, under the
provisions of AFI 36-2603:
, Panel Chair
, Member
, Member
The following documentary evidence pertaining to AFBCMR Docket
Number BC-2012-05572 was considered:
Exhibit A. DD Form 149, dated 27 Nov 12.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Letter, AFLOA/JAJM, dated 19 Feb 13.
Exhibit D. Letter, SAF/MRBR, dated 24 Feb 13.
Exhibit E. Letter, AFBCMR, dated 22 Aug 13, w/atch.
Panel Chair
3
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