RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00658
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

The sentence was too harsh, and also, not all due process procedures were afforded him.  Applicant provided extracts from his court-martial case, a personal statement, and several supportive statements.

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

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 3 February 1977.  Prior to the events under review, he was progressively promoted to the grade of master sergeant.  He received 26 Airman/Enlisted Performance Reports (APRs/EPRs).  In his last ten EPRs, the promotion recommendations were “5,” “5,” “5,” “5,” “5,” “5,” “5,” “5,” “5,” and “5.”

On 25 October 1999, the applicant was tried by a general court-martial at Sheppard AFB, TX.  He was charged with wrongful use of cocaine in violation of Article 112a, UCMJ.  The applicant pled and was found guilty in a trial by judge alone.  The court sentenced him to a bad conduct discharge, confinement for two months, and reduction to the grade of airman basic.  The applicant appealed and on 5 April 2000, the Air Force Court of Criminal Appeals affirmed the findings and sentence.

On 11 October 2000, the applicant was discharged with a bad conduct discharge.  He served 23 years, 6 months and 18 days of active duty service.  Time lost was 2 months and 18 days due to confinement.

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AIR FORCE EVALUATION:

AFLSA/JAJM states that under 10 USC Section 1552(f), which amended the basic correction board legislation, the AFBCMR’s 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 court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ).  

There is no legal basis for upgrading applicant’s discharge.  The appropriateness of the applicant’s sentence, within the prescribed limits, is a matter within the discretion of the court-martial and may be mitigated by the convening authority or within the course of the appellate review process.  The applicant had the assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court and the convening authority.  Therefore, the applicant was thus afforded all rights granted by statute and regulation.  The sentence with within the legal limits and was appropriate punishment for the offense committed.

While clemency is an option, there is insufficient reason for the Board to exercise clemency in this case.  While the applicant’s prior record of service was long and unblemished, his rank and maturity argues against clemency.  There must be consequences for criminal behavior.  The military judge, convening authority and the appellate court believed a bad conduct discharge was an appropriate consequence that accurately characterized his military service and his crime.  It would be unjust to change that characterization to one that hundreds of thousands of airmen, who have served honorably, also carry.  The applicant has provided no evidence of a clear error or injustice related to the sentence.  He presents no evidence to warrant upgrading the bad conduct discharge, nor has he demonstrated an equitable basis for relief.  Therefore, they recommend denial of the applicant’s request.

A complete copy of the evaluation is attached at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 June 2004, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  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 Air Force and adopt their rationale as the basis for the 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 this application in Executive Session on 30 September 2004, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2004-00658 was considered:

	Exhibit A.	DD Form 149, dated 24 Feb 03, w/atchs.
	Exhibit B.	Applicant's Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 9 Jun 04.
	Exhibit D.	Letter, SAF/MRBR, dated 18 Jun 04.