RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-00653
		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:

He received a full pardon from a former President of the United 
States and his discharge should be upgraded.

In support of his appeal, the applicant provides a copy of his 
Certificate of Pardon, dated 9 Oct 75.

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

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STATEMENT OF FACTS:

On 10 Jun 70, the applicant enlisted in the Regular Air Force 
for a period of four years.  

On 17 Nov 72, the applicant was arraigned at a Special Court-
Martial (SCM) on the following Specifications:

      CHARGE: Violation of the Uniform Code of Military Justice 
(UCMJ), Article 86; Specification 1: Did, on or about 26 Jan 72, 
was Absent Without Leave (AWOL) until on or about 7 Feb 72.  
Specification 2: Did, on or about 22 Feb 72, went AWOL until on 
or about 13 Nov 1972.  The applicant pleaded and was found 
guilty of both charges and specifications.  On 28 Nov 72, the 
applicant's sentence was adjudged by a military judge.  He was 
sentenced to a reduction to the grade of airman basic, to 
perform hard labor for two months, and to be discharged from the 
service with a BCD, as promulgated in Special Court-Martial 
Order No. 9.

On 23 Feb 73, the Air Force Court of Military Review affirmed 
the applicant's court-martial conviction and sentence.  The 
applicant declined to appeal the Air Force Court of Military 
Review’s decision to the United States Court of Military 
Appeals, making the findings and sentence in his case final and 
conclusive under the UCMJ.  

On 8 May 73, the applicant was discharged with service 
characterized as “Bad Conduct.”  He was credited with 2 years, 
10 months, and 28 days of active duty service.  

On 9 Oct 75, the applicant was issued a full presidential 
pardon.  The pardon explicitly provided that the applicant would 
receive clemency for his punitive discharge received as a result 
of having violated Article 86 of the UCMJ.

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THE AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial, stating, in part, that based on 
the documentation on file in the master personnel records, the 
discharge to include the character of service was consistent 
with the procedural and substantive requirements of the 
discharge instruction and was within the discretion of the 
discharge authority.  DPSOR found no evidence of an error or 
injustice in the processing of the applicant's discharge, nor 
did the applicant submit any such evidence.

The applicant's request is based on an alleged injustice in the 
continuing stigma of the BCD on his record and is not based on 
any error or injustice in the court-martial process.  The 
applicant's record shows that he was afforded all of the 
procedural rights offered by the court-martial and appellate 
process.  Prior to accepting his guilty plea, as evidenced by 
the record of trial, the military judge ensured the applicant 
understood the meaning and effects of his plea and the maximum 
punishment that could be imposed if his guilty plea was accepted 
by the court.

The complete DPSOR evaluation is at Exhibit C.

AFLOA/JAJM recommends approval, stating, in part, that upgrading 
the applicant’s BCD is appropriate based on the merits of the 
application.  

JAJM opines that although the application is untimely, justice 
warrants upgrading the applicant's discharge characterization to 
an honorable discharge.  A former President of the United States 
pardoned the applicant for his conviction.  This pardon 
explicitly provides clemency for the applicant's punitive 
discharge.  As such, the applicant's discharge characterization 
should be upgraded to honorable.

The complete JAJM evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the 
applicant on 28 Jun 13 for review and comment within 30 days.  
As of this date, no response has been received by this office 
(Exhibit E).

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THE ADDITIONAL AIR FORCE EVALUATION

AFLOA/JAJM recommends denial.  Based on a subsequent review of 
the applicant’s case and the Presidential Proclamation 4313, 
JAJM now recommends the Board not grant the request based on an 
error or injustice with the court-martial process or the fact 
that the applicant received a full pardon in furtherance of the 
Presidential Proclamation.

JAJM notes that, on 9 Oct 75, the applicant was issued a full 
presidential pardon in furtherance of Presidential Proclamation 
4313 dated 16 Sept 74.  This proclamation served to return 
Vietnam era draft evaders and military deserters "to their 
country, their communities, and their families, upon their 
agreement to a period of alternative service in the national 
interest, together with an acknowledgment of their allegiance to 
the country and its Constitution."  As part of this program, the 
clemency discharge was created. "The clemency discharge is a 
neutral discharge, neither honorable nor less than honorable.  
It does not effect a change in the characterization of the 
individual's military service as having been under other than 
honorable condition, nor does it serves to change, seal, erase 
or in any way modify the individual's past military record. 
Therefore, if the underlying discharge was issued as a result of 
a general court-martial, the issuance of a Clemency Discharge 
does not subject the underlying characterization to review [by 
the Board] under 10 U.S.C. 1553." 32 C.F.R. § 724.l 12(b).

On 15 Mar 76, the applicant was issued a "clemency discharge" in 
recognition of satisfactory completion of alternate service 
pursuant to Presidential Proclamation 4313.  In accordance with 
32 C.F.R. § 724.l 12(b), the Board should not upgrade the 
applicant's discharge by replacing the clemency discharge with 
an honorable discharge.  Therefore, we reverse our original 
recommendation.

The complete JAJM evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 9 Jan 14 for review and comment within 30 days.  As 
of this date, no response has been received by this office 
(Exhibit G).

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THE ADDITIONAL AIR FORCE EVALUATION

The Air Force Reviews Board’s Agency (AFRBA) Legal Advisor notes 
that during the legal review before final action on the 
applicant's case, it was discovered that the AFLOA/JAJM advisory 
did not correctly apply Presidential Proclamation 4313, 
"Announcing a Program for the Return of Vietnam Era Draft 
Evaders and Military Deserters," 16 Sep 74, through which the 
applicant's Pardon was granted.  This resulted in an AFLOA/JAJM 
recommendation to take action outside the scope and limits of 
the Executive Order and, arguably, beyond the authority of 
AFBCMR.  To correct the error, we subsequently requested 
AFLOA/JAJM reconsider their original advisory in light of the 
full text of the Executive Order.  The AFLOA/JAJM's revised 
advisory, dated 7 Jan 14 reversed their original recommendation.  
With respect to the present case, the AFRBA Legal Advisor noted 
that a Record of Proceeding from an AFBCMR case decided on 
14 Aug 13 (Docket Number BC-2012-04136), addresses a similar 
request for an honorable service characterization, also based on 
a Pardon granted in accordance with Presidential Proclamation 
4313.  In that case, the applicant's request to upgrade his 
service characterization was denied based on the limits of the 
Executive Order, but only after he was afforded the opportunity 
to provide information that might have supported an independent 
basis for upgrade, within the AFBCMR's authority.  

The complete AFRBA Legal Advisor evaluation, with attachments, 
is at Exhibit H.

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APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the 
applicant on 19 Feb 14 for review and comment within 30 days.  
As of this date, no response has been received by this office 
(Exhibit I).

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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 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 that indicates the applicant’s 
service characterization, which had its basis in his conviction 
by special court-martial 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).  In 
addition, we note the applicant has provided a copy of a 
certificate that indicates that he was granted a Presidential 
pardon for his absence offenses; however, we also note that this 
pardon was granted to the applicant by virtue of a comprehensive 
program for the return of Vietnam era draft evaders and military 
deserters that also included a Presidential Clemency Board.  
While the applicant was granted clemency for his absence 
offenses under this program, the tenets of this program 
specifically preclude this form of clemency from being used as a 
basis to obtain benefits from the Department of Veterans Affairs 
(DVA).  Initially, based on an evaluation (original) from JAJM, 
we were inclined to grant the applicant’s request; however, 
subsequently JAJM has reversed their recommendation.  Therefore, 
in view of these facts, we are not inclined to upgrade the 
applicant’s discharge on the basis of his receipt of a 
Presidential pardon, which is limited only to his absence 
offences, when doing so would bestow benefits to the applicant 
that are specifically precluded under the clemency program.  In 
the interest of justice, we considered upgrading the discharge 
on the basis of clemency; however, based on the lack of post 
service documentation since his discharge, we do not find the 
evidence presented is sufficient to compel us to recommend 
granting the relief sought on that basis.  In view of the 
foregoing, and in the absence of evidence to the contrary, we 
conclude that no basis exists to upgrade the applicant’s BCD.

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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-2013-00653 in Executive Session on 19 Nov 13 and 
12 May 14, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Feb 13, w/atch. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFPC/DPSOR, dated 30 Apr 13.
    Exhibit D.  Letter, AFLOA/JAJM, dated 19 Jun 13.
    Exhibit E.  Letter, SAF/MRBR, dated 28 Jun 13.
    Exhibit F.  Letter, AFLOA/JAJM, dated 7 Jan 14.
    Exhibit G.  Letter, SAF/MRBC, dated 9 Jan 14.
    Exhibit H.  Letter, AFRBA Legal Advisor, 3 Feb 14, w/atchs.
    Exhibit I.  Letter, SAF/MRBC, dated 19 Feb 14.



                                   
                                   Panel Chair