RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2013-01237
		COUNSEL:  NONE
	XXXXXXX	HEARING DESIRED:  NO

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  His Bad Conduct Discharge (BCD) be upgraded.

2.  His conviction be removed from his record and any databases 
that would report outside of the military.

________________________________________________________________

APPLICANT CONTENDS THAT:

He has changed his life over the last 13 years.  His conviction 
and sentence has served its purpose and does not need to exist 
any longer.  He would like to further his education and 
contribute to society in a positive manner.

In support of his request, the applicant provides copies of AF 
Form 1359, Report of Result of Trial, academic record, and a 
letter to his senator.

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

________________________________________________________________

STATEMENT OF FACTS:

On 25 Feb 2001, the applicant entered the Regular Air Force.

On 12 Mar 2003, he was separated with a BCD.  He served 1 year, 
2 months and 28 days of active service.

The remaining relevant facts pertaining to this application are 
contained in the letter prepared by the appropriate office of 
the Air Force.  Accordingly, there is no need to recite these 
facts in this Record of Proceedings.

On 18 Nov 2013, a request for post-service information was 
forwarded to the applicant for review and comment.  In an 
undated letter the applicant states that he has had numerous 
positive accomplishments after his discharge from the Air Force.  
During his very short time in the military he got into trouble 
not for financial profit, but to gain acceptance.  His military 
records reflect that he was a motivated and honest person who 
was liked by his peers.  He would like an upgrade in his 
discharge to show his friends and family that he has been a 
productive member of society despite his choices in early 
adulthood.  He has been honest about his discharge which has led 
to many career limitations that otherwise would allow him to 
earn a decent wage.  He served his sentence years ago and has 
carried “this ball and chain” for over a decade.  He has learned 
his lesson and an upgrade in discharge would allow him to prove 
to others that his post service efforts mean something.  In 
further support of his request the applicant includes a résumé 
of his post-service accomplishments.

His entire response is at Exhibit G.

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states upgrading the 
applicant’s BCD is not appropriate and recommends the Board deny 
the request as untimely or on the merits.  JAJM states that 
ordinarily, an applicant must file an application within three 
years after an error or injustice is discovered or, with due 
diligence, should have been discovered.  His court-martial took 
place in 2001 and the final action on his discharge was taken in 
2003.  The application is untimely.

On 11 Aug 2001, the applicant, then an Airman (E-2), pled guilty 
and was found guilty of diverse use of ecstasy and distribution 
of ecstasy to several airmen, in violation of Article 112a, 
Uniform Code of Military Justice (UCMJ); and attempted 
distribution of ecstasy, in violation of Article 80, UCMJ.

The applicant was sentenced to a BCD, confinement for one year, 
forfeiture of all pay and allowances and a reduction to the 
grade of E-1.

On 21 Dec 2001, the convening authority approved the findings 
and sentence.  The applicant appealed to the Air Force Court of 
Criminal Appeals (COMA) who affirmed the approved findings and 
sentence.

On 17 Dec 2002, the applicant did not petition the United States 
Court of Appeals for the Armed Forces for review. The 
applicant's BCD was ordered to be executed on 6 Mar 2003.

The applicant requests an upgrade to his BCD and removal of his 
conviction from his records and databases based on the fact that 
his drug conviction has prevented him from obtaining the 
education and jobs that he wants.  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 processing of his court-martial.  At his court-martial, the 
applicant initially pled not guilty to all charges, but after 
two days of prosecution witness testimony and additional 
evidence, the applicant changed his plea and pled guilty to use 
and distribution of ecstasy.  He was subsequently found guilty.  
His sentence to a BCD, confinement for one year, forfeiture of 
all pay and allowances, and a reduction to the grade of E-1, was 
well within legal limits.  This discharge characterization was 
and continues to be part of a proper sentence and properly 
characterizes his service.  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, separations from family, facing hostile enemy action 
and suffering financial hardships.  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.  This makes 
sense if the benefit program is to have any real value.  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.

The complete JAJM evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

While JAJM states his application is untimely, the changes in 
his life over the last 13 years show a greater impact, than if 
he filed within three 3 years.  To continue to feel the effects 
of his punishment is excessive.  JAJM’s statement that he wants 
his charges removed so that he can do whatever he wants is not 
true.  He stated that his intentions were to pursue school and 
be allowed to further his education or contribute to society in 
a positive manner that allows him to make his parents proud.  He 
has no interest in collecting veteran’s benefits.  He 
volunteered to serve his country and he never expected to be 
given anything in return for his service.  He paid his own way 
through school and does not rely on the government for any 
assistance. He has attained two massage therapy state licenses, 
became a registered nurse as well as achieved numerous other 
accomplishments.  He asks the reader to make their own informed 
decision.

His complete response is at Exhibit E.

________________________________________________________________

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 noting the lack of 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.

________________________________________________________________

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 BC-2013-
01237 in Executive Session on 9 Jan 2014, under the provisions 
of AFI 36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered: 

    Exhibit A.  DD Form 149, dated 24 Feb 2013, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFBCMR, dated 18 Nov 2013.
    Exhibit D.  Letter, AFLOA/JAJM, dated 3 May 2013.
    Exhibit E.  Letter, SAF/MRBR, dated 10 May 2013.
    Exhibit F.  Letter, Applicant, dated 20 May 2013.




                                   
                                   Panel Chair


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