RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-03531
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His Bad Conduct Discharge (BCD) be upgraded to a General (under honorable conditions) or other than honorable conditions.
APPLICANT CONTENDS THAT:
His discharge and punishment were inequitable. He was never given an opportunity for rehabilitation or treatment to save his military career.
The applicants complete submission, with attachments, is at Exhibit A.
STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on 20 May 98.
On 5 Mar 99, the applicant was tried by a general court-martial and found guilty of the following charges and sentenced to a BCD, 12 months confinement, and forfeitures of all pay and allowances:
1. One charge and two specifications in violation of Article 112a, UCMJ for wrongful use of LSD and marijuana.
2. One charge and one specification in violation of Article 134, UCMJ for wrongful possession of alcohol under the age of 21.
3. One charge and three specifications in violation of Article 92, UCMJ for wrongfully using his government credit card, failing to obey a lawful general order and failing to obey a lawful general regulation.
4. One charge and two specifications in violation of Article 90, UCMJ for willfully disobeying lawful commands from his superior commissioned officer.
On 12 Jun 00, the applicant was furnished a BCD, and was credited with 1 year, 4 months, and 1 day of active service.
The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice warranting upgrade of his BCD. The applicant was tried by a general court-martial and found guilty, in accordance to his pleas, of multiple charges and specifications in violation of various articles of the UCMJ. He was sentenced to be discharged with a BCD, to be confined for 12 months, and forfeitures of all pay and allowances. The convening authority approved the sentence as adjudged. The record was forwarded to the Air Force Court of Criminal Appeals, who affirmed the findings in whole on 15 Dec 99 in a written opinion. On 3 Mar 00, appellate defense counsel petitioned the Court of Appeals for the Armed Forces for a grant of review which was denied on 9 May 00. Final action was taken on the applicants case on 9 Jun 00. The applicant was afforded all his appellate rights. In accordance with 10 USC 1552(f), the Board has no authority to overturn the court-marital conviction but may only, on the basis of clemency, correct the actions taken by the reviewing authorities, i.e., the sentence. The applicant did not submit anything in support of clemency, but rather argues that he should not have received a BCD because he was never given the opportunity for rehabilitation.
A complete copy of the AFLOA/JAJM evaluation is at Exhibit C.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 23 Feb 15 for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office.
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 an error or injustice warranting upgrade of the applicants BCD. 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 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 applicants overall quality of service, the court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted. In the absence of any evidence related to the applicants post-service activities that would enable us to determine if his accomplishments since his discharge are sufficient to overcome the misconduct for which he was discharged, we find no basis upon which to favorably consider this application at this time. We note the applicant did not provide any evidence related to his activities in the community since his discharge. Should he provide such documentation, we would be willing to reconsider his case on the basis of new evidence. Therefore, in view of the above, we find no basis to recommend granting the relief sought in this application..
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.
The following members of the Board considered AFBCMR Docket Number BC-2014-03531 in Executive Session on 19 May 15 under the provisions of AFI 36-2603:
The following documentary evidence pertaining AFBCMR Docket Number BC-2014-03531 was considered:
Exhibit A. DD Form 149, dated 24 Aug 14, w/atchs.
Exhibit B. Applicant's Master Personnel Records.
Exhibit C. Memorandum, AFLOA/JAJM, dated 14 Jan 15.
Exhibit D. Letter, SAF/MRBR, dated 23 Feb 15.
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