RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-02018

		COUNSEL:  NONE

		HEARING DESIRED:  NO 


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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to Honorable. 

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APPLICANT CONTENDS THAT:

His situation does not warrant a dishonorable discharge.  A special court-martial is often considered to be “the misdemeanor court” due to the relatively minor nature of the offenses dealt with there. 

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

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STATEMENT OF FACTS:

On 28 Aug 84, while serving in the grade of Staff Sergeant (E-5) in the Regular Air Force, the applicant was dropped from his unit’s rolls as a deserter for unauthorized absence in excess of 180 days.

On 15 Oct 84, the applicant called the section commander of his old unit and said he wanted to turn himself in.  

On 14 Nov 84, the applicant pled guilty at a Special Court-Martial to the charge of unauthorized absence (desertion) during the period of 1 Mar 84 through 10 Oct 84, and was sentenced to a BCD, confinement for 90 days, and reduction to the grade of Airman Basic (E-1).  

On 29 Aug 85, the applicant was furnished a BCD with a narrative reason for separation of “conviction by court-martial (desertion).”  

On 8 May 87, the Air Force Discharge Review Board considered the applicant’s appeal to upgrade is discharge to General and denied his request, finding neither the evidence of record nor that provided by the applicant substantiated an inequity or impropriety which would justify a change of the discharge.  

On 7 Jan 14, a request for post-service information was forwarded to the applicant for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit F).

The remaining relevant facts pertaining to this application are contained in the letter prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice.  On 14 Nov 84, while on active duty as a staff sergeant, the applicant pled guilty in a special court-martial to one charge of unauthorized absence from his unit for seven months in violation of Article 86, Uniform Code of Military Justice (UCMJ).  For desertion, he was sentenced to a BCD, confinement for 90 days, and a reduction to the grade of Airman Basic (E-1).  On 26 Dec 84, the convening authority approved the findings and sentence.   The applicant appealed to the Air Force Court of Military Review (AFCMR), and on 20 Feb 85, the AFCMR affirmed the finding of guilty and the sentence.  The applicant did not petition the United States Court of Appeals of the Armed Forces for a review.  Under 10 USC §1552(f), the Board’s ability to correct records related to courts-martial is limited.  Specifically, §1522(f)(1) permits the correction of records to reflect actions taken by a reviewing authority under the UCMJ.  Additionally, §1552(f)(2) permits the correction of records related to action on the sentence of court-martial for the purpose of clemency.  Apart from these two limited exceptions, the effect of §1552(f) is that the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 50 (the effective date of the UCMJ).  The applicant alleges no injustice and no error in the processing of the court-martial conviction against him.  His record of trial shows no error in the process of his court-martial.  At his court-martial, he pled guilty to and was found guilty of the charge.  Prior to accepting his guilty plea, the military judge ensured the applicant understood the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea was accepted.  A BCD is more than merely a service characterization; it is a punishment for the crimes the applicant committed while a member of the armed forces.  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 sentence of a court-martial.  Clemency in this case would be unfair to those who honorably served their country while in uniform.  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.  

A complete copy of the AFLOA/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 21 Jun 13 for review and comment within 30 days.  In response, he indicates he is being judged unfairly on the one mistake he made, and being punished for the rest of his life.  It was not a life sentence, and he served his sentence.  It is not unfair to anyone else because no one else was involved.  He was AWOL—that’s all.  He had an honorable record before this and put his life on the line in Vietnam, and his life is worth more than this unfair decision (Exhibit E).

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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 have considered the applicant's overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offense to which convicted, and the absence of any documentation pertaining to post-service activities.  Based on the evidence of record, 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 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-2013-02018 in Executive Session on 27 Feb 14, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 22 Apr 13, w/atch.
	Exhibit B.  Applicant's Master Personnel Records
	Exhibit C.  Letter, AFLOA/JAJM, dated 10 Jun 13.
	Exhibit D.  Letter, SAF/MRBR, dated 21 Jun 13.
	Exhibit E.  Letter, Applicant, dated 11 Jul 13.
	Exhibit F.  Letter, AFBCMR, dated 7 Jan 14, w/atch.





                                   
                                   Panel Chair