RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF: DOCKET NUMBER: BC-2014-03621
COUNSEL: NONE
HEARING DESIRED: NO
APPLICANT REQUESTS THAT:
His bad conduct discharge (BCD) be upgraded to a general (under
honorable conditions) discharge.
APPLICANT CONTENDS THAT:
His life style has changed for the better since being discharged
from the service.
The applicants complete submission, with attachments, is at
Exhibit A.
STATEMENT OF FACTS:
The applicant initially entered the Regular Air Force on
19 April 1989.
On 31 August 1999, the applicant was tried by a general court-
martial for the wrongful use of methamphetamine, in violation of
Article 112a, Uniform Code of Military Justice (UCMJ), and for
violating a lawful order, in violation of Article 92, UCMJ. He
was found guilty and sentenced to a BCD, seven months
confinement, and a reduction in grade from staff sergeant (E-5)
to the grade of airman basic (E-1). On 12 November 1999, the
convening authority approved the sentence as adjudged. On
20 March 2001, the Air Force Court of Criminal Appeals affirmed
the findings and sentence. On 21 May 2001, the applicant
petitioned the Court of Appeal for the Armed Forces (CAAF) for
review and his request was denied.
On 22 August 2001, the applicant was furnished a bad conduct
discharge, and was credited with 12 years, 4 months, and 3 days
of active service.
On 8 October 2014, a request for information pertaining to his
post-service activities was forwarded to the applicant for
review and response within 30 days (Exhibit C). The applicant
provided a copy of a Federal Bureau of Investigation (FBI)
report (Exhibit D).
AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial indicating there is no evidence of
an error or an injustice.
The punishment adjudged by a military judge and approved by the
convening authority was within the range of permissible
punishments. The applicant was afforded all his appellate
rights. In accordance with 10 USC 1552(f), the Board has no
authority to overturn the court-martial conviction but may only
on the basis of clemency, correct the actions taken by the
reviewing authorities, i.e., the sentence. In this case the
applicant submitted several letters as evidence in clemency.
While the letters state that the applicant has worked hard at
maintaining sobriety and supporting his family commendable
actions directed at appealing to the Boards sense of equity--
they are not persuasive legal arguments to overturn the
decisions of the court. Additionally, 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. The applicants courts-martial occurred in
1999 with final action in 2001. Therefore, this application is
untimely.
A complete copy of the AFLOA/JAJM evaluation is at Exhibit E.
APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the
applicant on 17 February 2015 for review and comment within
30 days (Exhibit F). 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. We took
notice of the applicant's complete submission in judging the
merits of the case; however, the Board finds no evidence of an
error or injustice occurred in the discharge processing. Based
on the available evidence of record, it appears the discharge
was consistent with the substantive requirements of the
discharge regulation and within the commanders discretionary
authority. The applicant has provided no evidence which would
lead us to believe the characterization of the service was
contrary to the provisions of the governing regulation, unduly
harsh, or disproportionate to the offenses committed. In the
interest of justice, we considered upgrading the discharge based
on clemency; however, based on the evidence before us, the Board
finds no basis to grant clemency at this time. However, the
Board would be willing to reconsider his appeal should he
provide new and relevant information relative to his claim.
Therefore, in the absence of evidence to the contrary, the Board
finds no basis upon which 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 an 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-2014-03621 in Executive Session on 28 May 2015 and
19 June 2015, under the provisions of AFI 36-2603:
Although chaired the panel, in view of his unavailability,
has agreed to sign as Acting Panel Chair. The following
documentary evidence was considered:
Exhibit A. DD Form 149, dated 3 September 2014, w/atchs.
Exhibit B. Applicants Available Master Personnel Record.
Exhibit C. Letter, SAF/MRBR, dated 8 October 2014.
Exhibit D. Federal Bureau of Investigation Report.
Exhibit E. Letter, AFLOA/JAJM, dated 19 December 2014.
Exhibit F. Letter, SAF/MRBR, dated 17 February 2015.
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