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AF | BCMR | CY2013 | BC-2013-01292
Original file (BC-2013-01292.txt) Auto-classification: Denied
RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:		DOCKET NUMBER: BC-2013-01292

				COUNSEL:  NONE

				HEARING DESIRED: NO

________________________________________________________________

APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to general (under 
honorable conditions).

________________________________________________________________

APPLICANT CONTENDS THAT:

He would like his discharge upgraded based on his military 
personnel file and performance.  He would like to take advantage 
of job, school and loans that are not available to him now.

The applicant submits no supporting documentation.  

The applicant’s complete submission is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

The applicant enlisted in the regular Air Force on 17 August 
1989.  On 15 September 1992, he pled guilty and was found guilty 
of wrongfully using marijuana and cocaine, in violation of 
Article 112a, Uniform Code of Military Justice (UCMJ).  He was 
sentenced to a bad conduct discharge, confinement for five 
months, total forfeitures and reduction to the grade of airman 
basic.  He was discharged 30 June 1994 with a bad conduct 
discharge. 

________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  Title 10 U.S.C 1552(f), amended 
the Boards ability to correct records related to courts-martial.  
Specifically, it permits the correction of a record to reflect 
actions taken by a reviewing authority and 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 Board is without authority to reverse, set 
aside, or otherwise expunge a court-martial conviction that 
occurred after 5 May 1950.

The applicant requests an upgrade to his bad conduct discharge 
so that he can have veteran’s benefits.  He alleges no error or 
injustice with the processing of his court-martial.  His record 
of trial shows no error during the processing of his court-
martial.  At the court-martial, the applicant had the 
opportunity to demand the government prove the offenses against 
him.  Prior to accepting the 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 by the court.  The applicant explained 
in his own words why he believed he was guilty and made an 
unsworn statement asking for leniency for himself and his 
family.  The court-martial took all of these factors into 
consideration when imposing the applicant’s sentence.

Rules for Court-Martial 1003(b)(8)(C) states a bad conduct 
discharge is designed as punishment for bad conduct.  It also 
indicates that a bad conduct discharge is more than merely a 
service characterization; it is punishment for crimes committed 
while a member of the Armed Forces.  The applicant’s sentence 
was an appropriate sentence for the offenses committed and well 
within the legal limits.  A bad conduct discharge 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 Veteran’s 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 are barred 
when the veteran was discharged or dismissed by reason of the 
sentence of a general court-martial.  Upgrading the applicant’s 
discharge is not appropriate.

The complete JAJM evaluation is at Exhibit C.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation and a request for post-
service information was forwarded to the applicant for review 
and comment on 25 April 2013 (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 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 offenses to 
which convicted, and the absence of any documentation pertaining 
to his 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.

________________________________________________________________

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-2013-01292 in Executive Session on 12 December 2013, 
under the provisions of AFI 36-2603:


The following documentary evidence pertaining to AFBCMR Docket 
Number BC-2013-01292 was considered:

    Exhibit A.  DD Form 149, 9 Mar 13.
    Exhibit B.  Applicant’s Master Personnel Records.
    Exhibit C.  Letter, AFLOA/JAJM, dated 24 Apr 13. 
    Exhibit D.  Letter, SAF/MRBR, dated 25 Apr 13.



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