RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2013-05470
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His bad conduct discharge (BCD) be upgraded.
APPLICANT CONTENDS THAT:
His bad conduct discharge is the result of trial by court-
martial on 4 April 1991 for a one-time urinalysis failure. The
BCD has brought discredit and shame upon his family. This type
of discharge far exceeds the customary corrective action applied
for the nature of the offense. The only other evidence of this
one-time act was provided by him under the advisement of
counsel. He expected a fair punishment and to be retained in
the Air Force. He feels his defense was defective as they urged
him to plead guilty. Additionally, his defense counsel failed
to notice that he had been awarded an Achievement medal. No
referral performance report was generated for the court-martial.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The applicant is a former member of the regular Air Force. On
30 April 1991, he pled guilty to wrongfully using marijuana, in
violation of Article 112a, Uniform Code of Military Justice
(UCMJ). He was sentenced to a bad conduct discharge, fine of
$300 and reduction to the grade of airman basic. He was
discharged on 15 September 1993 with a bad conduct discharge
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. The applicant was tried by
special court-martial on 4 April 1991. A military judge found
him guilty, in accordance with his plea, of wrongfully using
marijuana on a single occasion, in violation of Article 112a,
UCMJ. A panel of officers sentenced the applicant to be
discharged with a bad conduct discharge, fined $300 and to be
reduced to the grade of airman basic.
On 30 April 1991, the convening authority approved the sentence
as adjudged. On 1 November 1991, the Air Force Court of
Military Review affirmed the findings and the sentence. On
23 June 1993, the Court of Military Appeals denied the
applicants petition for a grant of review. On 27 August 1993,
the convening authority ordered the applicants bad conduct
discharge be executed.
The punishment adjudged by the panel of officer members and
approved by the convening authority was within the range of
permissible punishments. The applicant was afforded his
appellate rights so any claims of ineffective assistance of
counsel should have been brought up during the appeal where the
Court had the ability to gather affidavits from the defense
counsel regarding the applicants claims or trial strategy.
In accordance with 10 U.S.C 1552(f), the Board has no authority
to overturn the court-martial conviction. The Board may, only
on the basis of clemency, correct actions taken by the reviewing
authorities, i.e. the sentence. However, in this case the only
evidence submitted in support of clemency is one statement from
a minister.
There was no error or injustice with the court-martial process.
The complete 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 20 October 2014, for review and comment within
30 days (Exhibit D). As of this date, this office has received
no response.
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 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 applicant's overall
quality of service, the court-martial conviction which
precipitated the discharge, the seriousness of the offenses to
which convicted. There was insufficient evidence submitted
attesting to the applicants post-service accomplishments to
conclude that clemency at this time 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 AFBCMR Docket
Number BC-2013-05470 in Executive Session on 8 January 2015,
under the provisions of AFI 36-2603:
The following documentary evidence was considered:
Exhibit A. DD Form 149, dtd 14 Nov 13, w/atchs.
Exhibit B. Applicant's Master Personnel Records Excerpts.
Exhibit C. Letter, AFLOA/JAJM, dtd 3 Oct 14.
Exhibit D. Letter, SAF/MRBR, dtd 20 Oct 14.
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