RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-01693
				INDEX CODE:  110.00
				COUNSEL:  NONE

				HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

His discharge was too severe.  His life has changed because of the discharge.  He was suffering from mental health issues and this caused him to get a bad discharge.  The Air Force should have considered his mental health issues.

In support of his appeal, applicant submitted a copy of his DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States.

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

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STATEMENT OF FACTS:

On 21 May 90, the applicant enlisted in the Regular Air Force as an airman basic for a period of four years.

On 20 Aug 97, he was sentenced by a general court-martial to a BCD, confinement for eight months, and reduction to the grade of E-1.  His sentence was based on his conviction of one charge and one specification of absence without leave (AWOL), one charge and three specifications of wrongful use of cocaine, and one charge and one specification for wrongful possession of drug paraphernalia.  He was discharged on 15 Jan 99.  He served seven years, seven months and six days on active duty.

On 8 Aug 07, the Board staff requested the applicant provide documentation pertaining to his activities since leaving military service.  He has not responded (Exhibit F)

Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C.  On 15 Aug 07, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days, as of this date, no response has been received by this office (Exhibit G).

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends the requested relief be denied.  JAJM states an application must be filed within three years after the error or injustice was discovered, or, with due diligence, should have been discovered.  An application may be denied on the basis of being untimely; however, an untimely filing may be excused in the interest of justice.  The applicant’s request comes 10 years after his trial.  He stated that he knew of no error in 1999, but that the historical records should be accurate and reflect when justice has not been done.  He has not identified any error or injustice during his court-martial, and provided no justifiable basis to excuse his untimely application in the interests of justice.

Under 10 USC Section 1552, which amended the basic correction board legislation, the AFBCMR’s ability to correct records related to courts-martial is limited.  Specifically, Section 1552 permits the correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice (UCMJ).  Additionally, Section 1552 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 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 UMCJ).

JAJM further states the applicant has provided no evidence of an error or an injustice related to his prosecution or his sentence.  Nor has he provided evidence in support of his contentions.  The appropriate forum in which to raise these types of issues was at trial and during the appellate review process.  He has availed himself of all appellate rights to which he was entitled under the law.  The appellate courts found his conviction and sentence correct in fact and law.  His punishment was within legal limits and was appropriate for the offenses committed.  While clemency may be granted under 10 USC Section 1552(f)(2), he provides no justification for his request, and clemency is not warranted in this case.

A complete AFLOA/JAJM evaluation is at Exhibit E.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 27 Jul 07, for review and response.  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 an error or an 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 office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  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 AFBCMR Docket Number BC-2007-01693 in Executive Session on 18 Dec 07 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-01693 was considered:

   Exhibit A.  DD Form 149, dated 27 Apr 07, w/atch.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  FBI Investigative Report.
   Exhibit D.  Letter, AFLOA/JAJM, dated 26 Jun 07.
   Exhibit E.  Letter, SAF/MRBR, dated 27 Jul 07.
   Exhibit F.  Letter, SAF/MRBC, dated 8 Aug 07.
   Exhibit G.  Letter, SAF/MRBC, dated 15 Aug 07.
   Exhibit H.  Letter, SAF/MRBC, dated 17 Oct 07.