RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-00743
COUNSEL: NONE
HEARING DESIRED: NO
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APPLICANT REQUESTS THAT:
1. His under other than honorable conditions (UOTHC) discharge be upgraded to honorable.
2. If his full time in service cannot be upgraded to honorable, furnish him an honorable certificate of service for the 10 year period he did serve honorably.
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APPLICANT CONTENDS THAT:
He is not guilty of the crime for which he was prosecuted. He left is car with his cousins boyfriend, who was going to have the car serviced while the applicant was working. Soon after picking up his car he was stopped by police and drugs were found in the car. A urinalysis taken immediately was negative, and his cousins boyfriend admitted to accidently leaving the drugs in the car, but that information was not allowed to be presented in court.
After his conviction, his attorney notified him of impropriety on the part of the judge during his court-martial. The judge was having an affair with the prosecuting attorney, and she was winning all of her cases. His attorney wanted him to go back to court, but he was young and inexperienced and didnt want to bring shame on his family. Now, as his health deteriorates, he needs medical care.
The applicants complete submission, with attachments, is at Exhibit A.
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STATEMENT OF FACTS:
The applicant initially entered the Air Force on 23 May 86.
On 15 Apr 87, the applicant was arrested by civilian law enforcement and charged with possession of a controlled substance. When police strip searched the applicant, a baggie of cocaine and a baggie of marijuana fell out of his underwear.
The applicant was found guilty by General Court-Martial, and under General Court-Martial Order No. 20, dated 31 Dec 87, he was sentenced to prison.
On 8 Jun 89, the applicants Defense Council notified the Air Force that the applicants conviction was reversed by the United States Court of Military Review due to the military judge failing to recuse, or excuse himself, from sitting on the case after having an intimate relationship with the trial counsel. After approximately eight months in incarceration, the applicant requested he be discharged in lieu of another trial by court-martial.
On 13 Jun 89, after court-martial charges had again been preferred against the applicant, the applicants commander recommended the applicant be administratively discharged in lieu of trial by court-martial due to the cost involved with prosecuting the case.
On 29 Jun 89, per General Court-Martial Order No. 29, the General Court-Martial convening authority set aside the finding of guilty and the sentence from the applicants 1987 court-martial, and the preferred charges against the applicant were dismissed effective upon his discharge under other than honorable conditions (UOTCH).
On 16 Aug 89, the applicant was furnished a UOTHC discharge, a Narrative Reason for Separation of Request for Discharge in Lieu of Trial By Court-Martial, and was credited with 13 years, 4 months, 10 days of active service.
On 18 Nov 12, a request for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit C).
In response, he reiterates he was prosecuted unfairly, and asserts he has never recovered from having his life taken away from him. He served ten honorable years and was in the top three of his career field when he was discharged. He would not have been selected to work in a black program if he had not been top notch. His house has now been condemned and he is homeless (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 took notice of the applicants complete submission in judging the merits of the case, to include his rebuttal response to the advisory opinion; however, we do not find the documentation presented sufficient to conclude the applicant has been the victim of an error or injustice. We find no evidence or an error or injustice that occurred in the discharge process. It appears the applicants UOTHC discharge was consistent with the substantive requirements of the discharge regulation in effect at the time and within the commanders discretionary authority. No evidence has been presented to indicate otherwise. In the interest of justice, we considered upgrading his discharge on the basis of clemency; however, the applicant provided no character references or documentation for us to consider in determining whether his post-service accomplishments were sufficient to overcome the misconduct that formed the basis of the discharge. Therefore, in the absence of evidence to the contrary, we conclude that no basis exists for us to recommend granting the relief sought in this application.
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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.
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The following members of the Board considered AFBCMR Docket Number BC-2013-00743 in Executive Session on 19 Dec 13, under the provisions of AFI 36-2603:
Panel Chair
Member
Member
The following documentary evidence pertaining to AFBCMR Docket Number BC-2013-00743 was considered:
Exhibit A. DD Form 149, dated 5 Feb 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records
Exhibit C. Letter, AFBCMR, dated 18 Nov 13, w/atch.
Exhibit D. Letter, Applicant, dated 25 Nov 13.
Panel Chair
On 23 Jan 96, the applicant requested that he be discharged from the Air Force effective 12 Feb 96. By law, a claim must be filed within three years of the date of discovery of the alleged error or injustice. After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that he should be retired from active duty, effective 1 Feb 96, with an honorable discharge or that the contested report should be removed from his records.
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