RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2004-00836
INDEX CODE:  110.02
	XXXXXXXXXXXXXXXXXX			COUNSEL: NONE

	XXXXXXXXX					HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT: 

His bad conduct discharge (BCD) be upgraded to an Under Other Than Honorable Conditions (UOTHC) discharge and his records be corrected to reflect his medical status to entitle him to medical care for his condition of Hypertension.  

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APPLICANT CONTENDS THAT:

His condition of Hypertension was diagnosed while he was on active duty prior to his court-martial.  The judge told him he would receive Veterans Administration benefits for his medical care.  

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, and a copy of Department of Veterans Affairs (DVA) benefits denial letter dated 29 December 2003.  A copy of the applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

On 5 June 1984, prior to his Air Force enlistment, the applicant enlisted in the Army National Guard at the age of 17 in the grade of private (E-1) for a period of six years.  On 18 June 1984, the applicant was put on a physical profile and suspended from training pending a medical board for high blood pressure after complaining of “throbbing all over.”  On 3 July 1974, the applicant was discharged from the Army National Guard with a reenlistment code of RE-3 (individuals who are not qualified for continued Army service, but the disqualification is waiverable - ineligible for enlistment unless a waiver is granted), and a narrative reason for separation of “did not meet procurement medical fitness standards - no disability.”  He served 29 days on active duty with the Army National Guard.  

On 1 December 1986, 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 six years.  The applicant did not report his prior service on his enlistment documents.  He was progressively promoted to the grade of airman first class (E-3) effective and with a date of rank of 16 January 1987.  He received two Airman Performance Reports between 1 December 1986 and 17 August 1988 with overall ratings of 7 and 4.

On 10 July 1987, his commander notified the applicant of his intent to impose nonjudicial punishment on the applicant for being absent from his organization without authority on or about 4 July 1987 and remaining absent until on or about 7 July 1987.  On 15 July 1987, after consulting counsel, the applicant accepted nonjudicial punishment, waived his right to submit a written presentation, and requested to make an oral presentation.  On 20 May 1976, the applicant received punishment of a reprimand and 14 days of extra duty.  

On 4 November 1988, the applicant was tried by a general court-martial before a military judge.  He was charged and found guilty of several offenses, including:  two charges and four specifications of larceny in violation of Article 121; four specifications of uttering worthless checks in violation of Article 134; unauthorized absence in violation of Article 86; and three specifications of fraud in violation of Article 123 of the Uniform Code of Military Justice (UCMJ).  On 4 November 1988, the court sentenced the applicant to a bad conduct discharge, confinement for 33 months, forfeiture of $350 per month for 33 months, and reduction in grade to airman basic (E-1).  On 30 November 1988, the convening authority approved the sentence, as adjudged.  The Court of Criminal Review examined the record of trial and concluded that the findings and the sentence were correct in law and fact and affirmed the applicant’s conviction and sentence on 25 September 1989.  

The applicant was separated with a bad conduct discharge on 20 October 1989 with a separation code of JJD (conviction by court-martial - other than desertion) and a reenlistment code of 2M (discharged under general or other-than-honorable conditions).  He had served one year and nine months on active duty with the Air Force.  The applicant’s time lost was from 1 September 1988 through 20 October 1989 due to military confinement.

In a letter dated 29 December 2003, the DVA denied the applicant’s request for VA benefits for his Hypertension based upon his bad conduct discharge.

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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 record of trial reveals that the applicant plead guilty to the various charges and specifications.  Prior to being sentenced by the military judge, he was required to state in detail the charges against him and why he was guilty of each offense.  According to trial transcripts, at no time during this recital is there a discussion of medical care or Veteran’s benefits as the applicant claims, nor would it have been appropriate for the military judge to do so.  

JAJM states that there is no legal basis for upgrading the 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.  These matters were considered in review of the sentence.  The applicant was thus afforded all rights granted by statute and regulation.  It is JAJM’s opinion that the applicant provides no compelling rationale to mitigate the approved discharge given the circumstances of the case.  

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 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 crimes.  JAJM believes 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 30 July 2004 for review and comment within 30 days.  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 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 probable error or injustice.  The applicant’s discharge had its basis in his trial and conviction by a court-martial and he has provided no evidence showing that the sentence exceeded the maximum punishment allowable based on the offense of which he was convicted.  We are constrained to note that, 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.  There is nothing in the evidence provided which would lead us to believe that a change to the actions of any of the reviewing officials is warranted.  Furthermore, we do not find clemency is appropriate in this case since the applicant has not provided any evidence of a successful post-service adjustment.  Therefore, the applicant’s request is not favorably considered.

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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 14 October 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2004-00836:

	Exhibit A.  DD Form 149, dated 29 Dec 03, with attachments.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 14 Jul 04.
	Exhibit D.  Letter, SAF/MRBR, dated 30 Jul 04.