RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2004-00165

	XXXXXXX	COUNSEL:  NONE

	XXXXXXX	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His separation code of “JJD - Court-Martial {Other}” be changed to “JEH.”

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THE APPLICANT CONTENDS THAT:

The Presidential Pardon he received removes or eliminates all civil and legal disabilities and disqualifications either general or special that arose from the federal or military offense that was the subject of the pardon.  He desires to enter the New York Army National Guard; however, the separation code he received is preventing him from doing so.

In support of the appeal, applicant submits his personal statement and a copy of the Presidential Pardon.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 28 April 2003, the Board reconsidered applicant’s request that his Bad Conduct Discharge (BCD) be upgraded to general (under honorable conditions).  The majority of the Board found insufficient evidence of an error or injustice and recommended denial of the application.  The Director, Air Force Review Boards Agency (SAF/MRB) determined the applicant’s discharge should be upgraded to general on the basis of clemency.  The facts and circumstances surrounding the applicant’s discharge and the rationale of the earlier decision by the Board are contained in the Addendum to Record of Proceedings at Exhibit C.

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AIR FORCE EVALUATION:

AFPC/JA recommends the application be denied and states, in part, that the applicant has not met his burden of proving an error or injustice in his separation or reentry codes.  Although the Presidential Pardon the applicant received restores his civil rights, it does not change the historical fact of the acts he committed or his moral unfitness.  While the applicant believes the separation code is preventing him from entering the Army National Guard, it is likely his Reenlistment Eligibility (RE) code of 2M (serving a sentence of suspended sentence of court-martial; or separated while serving a sentence or suspended sentence of court-martial) is what is preventing his enlistment in the ANG.  The RE code he received is correct.  Furthermore, there is no separation code of “JEH.”  AFPC/JA cites two AFBCMR cases in which the Board declined to upgrade the applicants’ discharges based on their pardons, noting that there was no evidence the discharges were improper or contrary to the governing regulations.

The AFPC/JA evaluation, with attachments, is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 16 April 2004 for review and response within 30 days.  However, as of this date, no response has been received by this office.

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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 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 took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Staff Judge Advocate and adopt her rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 Docket Number BC-2004-00165 in Executive Session on 21 June 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 1 Jan 04, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Addendum to Record of Proceedings, w/atchs.
    Exhibit D.  Letter, AFPC/JA, dated 7 Apr 04, w/atchs.
    Exhibit E.  Letter, SAF/MRBR, dated 16 Apr 04.

                                   Panel Chair