RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2007-03711
				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:

He was informed that his discharge could be upgraded after six months if he applied.  He has learned from errors in his life that discipline is important to success.  It took him being discharged from the Air Force to understand that principle.

In support of his appeal, applicant submitted copies of his college transcripts, his pastoral license and character references.

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

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STATEMENT OF FACTS:

On 30 Jun 86, the applicant enlisted in the Regular Air Force as an airman first class for a period of four years.

On 14 Apr 89, he was sentenced by a general court-martial to a BCD, confinement for six months, forfeiture of $350.00 pay per month for six months and reduction to the grade of E-1.  His sentence was based on his conviction of wrongful use of cocaine and being absent without leave (AWOL).  On 8 Mar 90, the convening authority approved the sentence.  He was discharged on 23 Mar 90.  He served 3 years, 8 months and 24 days on active duty.

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 7 Apr 08 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.  His request comes 18 years after his trial.  He states he changed his life for the better because he does not want to die in shame.  He has learned that rules are important and must be followed for the general well being of all involved.  While it is laudable he has changed his life for the better, this is insufficient to demonstrate that his untimely filing should be excused.  He has not provided any other basis for concluding that his untimely filing should be excused in the interest 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).

He 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.  While clemency may be granted under 10 USC, Section 1552(f)(2), it is not warranted in this case.  The Rules for Courts-Martial 1003(b)(8)(B) states that a BCD "is designed as punishment for bad conduct rather than as a punishment for serious offenses of either a civilian or military nature."  His sentence was well within the legal limits and was an appropriate punishment for the offenses.

AFLOA/JAJM's complete evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 15 Feb 08, 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 an error or an injustice.  After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge was erroneous or unjust.  Based on the documentation in the applicant's records, it appears the discharge process was appropriate and accomplished in accordance with Air Force policy.  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 decision that the applicant has failed to sustain his burden of proof that he has suffered either an error or an 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 AFBCMR Docket Number BC-2007-03711 in Executive Session on 15 May 08 under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-03711 was considered:

   Exhibit A.  DD Form 149, dated 26 Oct 07, w/atchs.
   Exhibit B.  Master Personnel Records.
   Exhibit C.  FBI Investigative Report.
   Exhibit D.  Letter, AFLOA/JAJM, dated 28 Jan 08.
   Exhibit E.  Letter, SAF/MRBR, dated 15 Feb 08.
   Exhibit F.  Letter, SAF/MRBC, dated 7 Apr 08.