RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-01979
		INDEX CODE:  110.02
		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY DUE DATE:  25 OCTOBER 2005

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APPLICANT REQUESTS THAT:

His Bad Conduct Discharge be upgraded to Honorable.

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APPLICANT CONTENDS THAT:

He enlisted in the Air Force right out of high school.  His ability to serve was impaired by his youth, immaturity and lack of experience in dealing with so many different people.  His punishment was severe.  He has been out of the Air Force for six years and has a son who depends on him to provide.  He is without an education and moves from one dead end job to another.  He was told his discharge would be General (Under Honorable Conditions).  He was told that this type of discharge would not allow him the use of certain veteran’s benefits, but his educational benefits would be available to him because he had served at least two years.  He is now 28 years old and has an opportunity to attend a Computer Learning Center but he cannot afford to pay for the school.  He was a young man who made a poor decision and has spent the last six years paying for his poor choice.  

In support of the application, the applicant submits his personal statement, a copy of his DD Form 214 (separation document), and a copy of his DD Form 293 (Discharge Review Board application with attachment).  The applicant's complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 19 October 1994 at the age of 18 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-2) effective and with a date of rank of 1 February 1996.  He received two Enlisted Performance Reports (EPRs) for the periods ending 18 June 1996 and 18 June 1997, in which the promotion recommendations were 3 and 1, respectively.

Information provided by the Air Force office of primary responsibility indicates pursuant to his plea of guilty, the applicant was tried and convicted by a general court-martial for wrongful use and distribution of marijuana; failure to go to his appointed place of duty; willful disobedience of an order; and wrongful solicitation of another to make a false official statement on 9 June 1997.  His sentence included a reduction to E-1 (airman basic), confinement for 18 months, and a bad conduct discharge.  The convening authority approved his sentence as adjudged.  On 13 May 1998, the Air Force Court of Criminal Appeals affirmed the findings and sentence.  The final order was promulgated on 5 September 1998 and the bad conduct discharge was executed on 22 September 1998. 

On 22 September 1998, the applicant was discharged with a bad conduct discharge.  He had served 2 years, 10 months, and 28 days on active duty.  He had 98 days of lost time due to confinement.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM notes the applicant’s contentions that his youth and limited life experiences at the time he committed these offenses are to blame for his failure to maintain standards and obey the law, and his bad conduct discharge is holding him back from getting an education and progressing with a career.  JAJM believes none of these factors provide a basis to grant relief in this case, stating that the sentence was within the legal limits and was appropriate for the offenses committed, and he provided no compelling rationale to mitigate the approved punitive discharge given the circumstances of his case.  In addition, JAJM believes there is insufficient reason(s) evidence provided for the Board to exercise clemency.

As an additional matter, JAJM noted that the Board is not empowered to set-aside or reverse the findings of guilty by a court-martial.  Rather, 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.  JAJM does not believe there is a basis for any relief as to the sentence of the military court in this case.

JAJM’s 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 for review and comment on 3 September 2004.  As of this date, this office has received no response (Exhibit D).

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, AFLSA/JAJM states there is no merit to the applicant’s contention that during his court-martial he was informed he would receive a general discharge.  JAJM explains in cases where a punitive discharge is adjudged, the discharge cannot be executed until appellate review is completed.  Once appellate review is complete, the convening authority, or successor, must take additional action to execute the punitive discharge.  Therefore, the convening authority’s action, by which he approved the sentence except for the punitive discharge and the later action executing the bad conduct discharge after completion of appellate review were proper.

JAJM states there is nothing in the record of trial to support the applicant’s contention that during his court-martial he was told he would receive a general discharge, which is an administrative discharge, rather than a punitive discharge.  JAJM notes the applicant requested an administrative discharge in lieu of court-martial.  JAJM further notes the applicant requested a general discharge but also stated that he realized he might receive an under other than honorable conditions discharge.  The convening authority disapproved his request for a general discharge.  

JAJM notes in a pretrial agreement signed by the applicant, the terms the applicant agreed to in exchange for his guilty plea, confinement would be limited to 24 months.  The pretrial agreement also states, “The convening authority may approve any other punishments that may be adjudged by the court-martial.”  Moreover, when the pretrial agreement was discussed on the record, the judge explained that the convening authority could approve no more than 18 months of confinement, total forfeitures, and the bad conduct discharge.  When the judge asked him if the applicant agreed with that interpretation of the pretrial agreement, the applicant replied yes.  

JAJM opines the applicant was well aware of the possibility of him receiving a bad conduct discharge during the court-martial process.  JAJM notes after being sentenced to a bad conduct discharge, the applicant was reminded that the pretrial agreement had no effect on the adjudged bad conduct discharge (Exhibit E).  

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ADDITIONAL APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the additional Air Force Evaluation was forwarded to the applicant for review and comment on 24 March 2005.  The evaluation was returned to our office marked “moved left no address, unable to forward; return to sender” (Exhibit F).

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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 an error or injustice.  We are not persuaded by the evidence presented that the separation characterization received by the former member should be changed.  The former member's discharge was based on his trial and conviction by a general court-martial.  While law precludes us from reversing a court-martial conviction, we are authorized to correct the records to reflect actions taken by reviewing officials and to take action on the sentence of a military court based on clemency.  There is nothing in the available record that would cause us to disturb the actions of the reviewing officials or to warrant a correction of his records based on clemency.  In the absence of such evidence, 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 09 May 2005, under the provisions of AFI 36-2603:

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2004-01979:

	Exhibit A.  DD Form 149, dated 16 Jun 04.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 27 Aug 04.
	Exhibit D.  Letters, SAF/MRBR, dated 3 Sep 04; AFBCMR, dated
		2 Feb 05
	Exhibit E.  Letter, AFLSA/JAJM, dated 21 Mar 05.
	Exhibit F.  Returned AFBCMR Letter to Applicant, dated 
		24 Mar 05, w/atch.