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 applicants 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 veterans 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 applicants 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 applicants 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 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 are barred
when the veteran was discharged or dismissed by reason of the
sentence of a general court-martial. Upgrading the applicants
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 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, 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. Applicants 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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