RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2013-00132
      						COUNSEL: NONE
						HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

His Bad Conduct Discharge (BCD) be upgraded and his civilian records cleared.   

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APPLICANT CONTENDS THAT:

He was given a reduction in pay grade, served 7 months confinement, the BCD was extreme and is permanent punishment that never goes away.  

In support of his request, the applicant provides a letter from the office of Congressman Gregg Harper, Third Congressional District, Mississippi. 

A copy of the applicant’s complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

On 17 October 1985, the applicant enlisted in the Regular Air Force.   

On 16 December 1998, the applicant was found guilty of two specifications of wrongful use of cocaine, in violation of Article 112a, Uniform Code of Military Justice (UCMJ).  He was sentenced to a BCD, confinement for seven months and a reduction to the grade of airman basic (E-1).  

On 12 June 1989, the United States Court of Military Appeals denied the applicant’s petition for grant of review.  As a result, the applicant’s BCD was ordered to be executed on      15 July 1989.  

On 10 August 1982, he was discharged with a BCD after serving   3 years, 9 months and 24 days on active duty.    

On 20 September 2013, the applicant was afforded the opportunity to provide information pertaining to his activities since 
leaving the service.  In response to the request, the applicant provides a personal letter, character reference and criminal history record.  The applicant states that he chose to try cocaine and failed a urinalysis.  He fully cooperated with the office of special investigations and his commander.  He was given military counsel and pled guilty to two uses of cocaine.  He was released after 5 months and 25 days for cooperation and good behavior.  After discharge, he worked as a jet engine mechanic for a defense contractor and spent the following 21 years in the automobile business.  He has been married for 19 years and has two daughters.  He has been a productive member of society and requests his discharge be upgraded.  It was a mistake in his youth and not a way of life for him.  It has been a 25 year sentence and he asks for a second chance.  

The applicant’s response, with attachments is at Exhibit E.  

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial of the applicant’s request as untimely or on the merits.  

JAJM states that under Title 10 United States Code (USC) Section 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts- martial are limited.  Specifically, Section 1552(f) (2) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ.  Additionally, Section 1552(f) (2) permits the correction of records related to action on the sentence of courts martial for the purpose of clemency.  Apart from these two limited exceptions, the effect of Section 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 1950 (the effective date of the UCMJ).

JAJM notes the applicant alleges his punishment was extreme for the offenses he committed.  He alleges no error in the processing of his court-martial and his record of trials show no error in the processing of his court-martial.  At his court-martial, he pled guilty to the charge and specifications.  The applicant, who was represented by military counsel, had the opportunity to demand the government prove the offenses against him.  Prior to accepting his guilty plea, as evidenced by the record of trial, 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 by the court.  The applicant made an unsworn statement on his behalf stating he made some serious mistakes and stands ready to take his punishment.  He asked for mercy and specifically asked not to be given a punitive discharge because of the stigma that would remain with him for the rest of his life.  The court-martial took all of these factors into consideration when imposing the applicant’s sentence.  

JAJM states the rule for courts-martial states that a BCD is designed as punishment for bad-conduct.  It also indicates that 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.  The applicant’s sentence to a BCD, confinement for 7 months and a reduction in grade to airman basic (E-1) was and continues to be part of a proper sentence and properly characterizes his service.  

It is JAJM’s opinion that clemency in this case 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.  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.  

The complete JAJM evaluation is at Exhibit B.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 24 February 2013, for review and comment within   30 days (Exhibit C).  As of this date, no response has been received by this office. 

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

4.  The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved.  Therefore, the request for a hearing is not favorably considered.  

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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.

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The following members of the Board considered Docket Number BC-2013-00132 in Executive Session on 29 October 2013, under the provisions of AFI 36-2603:

	 , Panel Chair
         , Member
	 , Member


The following pertinent evidence was considered in Docket Number BC-2013-00132:

    Exhibit A.  DD Form 149, 9 Oct 2012, w/atchs.
    Exhibit B.  Letter, AFLOA/JAJM, dated 19 Feb 2013.
    Exhibit C.  Letter, SAF/MRBR, dated 24 Feb 2013.   
    Exhibit D.  Letter, AFBCMR, dated 20 Sep 2013.
    Exhibit E.  Letter, Applicant, undated, with atch.
        




                                    
                                   Panel Chair