RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-03784
INDEX CODE:  110.02
	XXXXXXXXXXXXXXXXXXX			COUNSEL: NONE

	XXXXXXXXXXXXX				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His bad conduct discharge (BCD) be upgraded to an honorable discharge.

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APPLICANT CONTENDS THAT:

His active duty job performance was outstanding.  He received numerous letters of appreciation.  He has been diagnosed as having a service-connected mental illness, which has left him disabled.  

In support of his application, he provided a DD Form 293, Application for the Review of Discharge or Dismissal From the Armed Forces of the United States.  A copy of the applicant’s complete submission with attachment is at Exhibit A.

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STATEMENT OF FACTS:

On 29 March 1995, the applicant enlisted in the Regular Air Force at the age of 20 in the grade of airman basic (E-1) for a period of four years.  He was progressively promoted to the grade of airman first class (E-3) effective and with a date of rank of 29 July 1996.  The applicant received two enlisted performance reports from the period 29 March 1995 to 28 November 1997 with overall ratings of four, and two (referral report).  The applicant also received five letters of counseling and one letter of reprimand from the period 22 November 1995 to 29 May 1997.

On 1 August 1997, his commander notified the applicant of his intent to impose nonjudicial punishment for dereliction of duties.  On 8 August 1997, the applicant accepted non-judicial punishment, submitted a written presentation, and requested to make an oral presentation.  The commander determined the applicant had committed the offense alleged and, on 8 August 1997, imposed punishment consisting of a reduction in grade to airman and forfeiture of $100 per month for two months.  The reduction in grade portion of the punishment was suspended until 7 February 1998, at which time, unless sooner vacated; it was to be remitted without further action.  On 12 August 1997, the applicant chose not to appeal the decision.  

On 12 May 1998, the applicant was tried at a general court-martial for use of a controlled substance.  He pled guilty to wrongful use of cocaine in violation of the Uniformed Code of Military Justice (UCMJ), Article 112A.  His plea of guilty resulted in a sentence of a bad conduct discharge, reduction to the grade of airman basic (E-1), confinement for 179 days, and forfeiture of $366 pay per month for five months.  On 30 June 1998, the convening authority approved his sentence; except for the forfeiture, which was reduced to $249, pay per month for five months.  On 6 June 2000, the United States Air Force Court of Criminal Appeals (AFCCA) approved the findings and sentence as correct in law and fact.  On 21 May 2001, the United States Court of Appeals for the Armed Forces affirmed the decision of the AFCCA.

The applicant was discharged with a bad conduct discharge on 14 January 2002 with a separation code of JJD (conviction by court-martial - other than desertion) and a reenlistment code of 2M (serving sentence or suspended court-martial sentence; or separated while serving or suspended court-martial sentence).  He was credited with 6 years, 9 months, and 15 days of active duty service.  

Examiner’s Note:  On 8 December 2003, pursuant to the Board’s request, the applicant was contacted to provide military medical records to support his claim of mental illness after the Department of Veterans Affairs (DVA) denied having any of the applicant’s records on file.  As of this date, the applicant has not responded.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states that under 10 USC Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Corrections of Military Record’s (AFBCMR) ability to correct records related to courts-martial is limited.  Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ.  Additionally, Section 1552(f)(2) permits 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 effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set-aside, or otherwise expunge a courts-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ).  

JAJM states that the applicant is not contending that a specific error has occurred which requires the correction of his court-martial record and there is no indication in the record of such an error.  The applicant admitted use of cocaine on numerous occasions due to stress from taking care of his ill mother and baby.  He stated at trial that the demands of helping his girlfriend with the child and taking care of his mother was so stressful that he turned to alcohol and eventually cocaine.  There is no indication in the record of trial that the applicant suffered from a mental illness at the time of commission of the offense or at the time of the trial.  The military judge and the Air Force Court of Military Review were convinced of the applicant’s guilt beyond a reasonable doubt.  The sentence he received was well within the legal limits and the bad conduct discharge was appropriate punishment for the offense committed.  

It is JAJM’s opinion that while clemency is an option; there is no reason for the Board to exercise clemency in this case.  The applicant did not serve honorably.  There are consequences for criminal behavior and the court members, convening authority, and the Air Force Court of Military Review believed a bad conduct discharge was an appropriate consequence that accurately characterized his military service and his crime.  JAJM believes it would be unjust to change that characterization to one that hundreds of thousands of airmen, who have served honorably, also carry.  The applicant presents no evidence to warrant upgrading the bad conduct discharge, nor has he demonstrated an equitable basis for relief.  The JAJM evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 20 February 2004 for review and comment within 30 days (See Exhibit D).  As of this date, this office has received no response.

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice.  After reviewing all the evidence presented, we are not persuaded that action to upgrade the applicant’s discharge based on clemency is appropriate.  The applicant’s discharge had its basis in his trial and conviction by court-martial.  In view of the extreme seriousness of the misconduct he committed (i.e., the use an illegal substance), the fact that his service record was not as meritorious as he alleges, and the short period of time since his separation, we do not believe a sufficiently lengthy period of time has elapsed to warrant the exercise of clemency at the present time.

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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.

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The following members of the Board considered this application in Executive Session on 13 April 2004, under the provisions of AFI 36‑2603:

The following documentary evidence for AFBCMR Docket Number BC-2003-03784 was considered:

	Exhibit A.  DD Form 149, dated 17 Nov 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 10 Feb 04.
	Exhibit D.  Letter, SAF/MRBR, dated 20 Feb 04.