SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2008-03079-3

xxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

The Board reconsider his request to upgrade his bad conduct discharge (BCD) to general.

RESUME OF THE CASE

The applicant is a former Air Force airman (E-2) who was discharged with a BCD on 28 Jan 09. 

On 3 Dec 09, the Board considered and denied his request for an upgrade to his discharge and he be allowed to retire in lieu of his BCD; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  Additionally, the Board found no evidence that indicated the applicant's BCD, which had its basis in his conviction by special court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ).  Furthermore, the Board considered upgrading the discharge based on clemency; however, did not find the evidence presented sufficient to compel them to recommend granting the relief sought on that basis.  The Board took note of his complete submission in judging the merits of the case; however, were not persuaded that corrective action was warranted. Additionally, the Board noted his initial request to be allowed to retire in lieu of appellate court-martial action on his adjudged sentence to a BCD. The basis for his request was that he had over 20 years of active service. However, based on the available evidence, at the time of his court-martial, and as a result of the lost time he had accumulated, he did not have 20 years of total active federal military service (TAFMS). Because of his unsuccessful appeal of the court-martial sentence, his BCD was affirmed and executed.  

On 14 Dec 17, the Board reconsidered and denied his request to be allowed to retire in lieu of his BCD; finding the applicant had provided insufficient evidence of an error or injustice to justify relief.  The Board noted the applicant’s contention that he served more than 20 years of active duty at the time of his court-martial and is eligible for retirement; however, they did not find his assertions in and by themselves sufficiently persuasive to override the rationale provided by the earlier board.

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letters and Records of Proceedings at Exhibits F and I. 

On 14 Jun 21, the applicant requested reconsideration of his request for an upgrade to his discharge.  He again contends in the final years of his service he was a hopeless alcoholic without a chance for rehabilitation.  This disease ruined his military career and his first marriage; however, he has now been sober for almost 10 years.  Due to his BCD, he cannot obtain work in the government sector.  He has over 20 years of active service of which 90 percent was stellar.

In support of his reconsideration request, the applicant submitted the following new evidence: (1) personal statement; (2) character statements from 2007; and (3) a statement from the applicant regarding interrogatory information. 

The applicant’s complete submission is at Exhibit J.

APPLICABLE AUTHORITY/GUIDANCE

This Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections reflecting actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance (Wilke Memo) to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 4 Jan 22, Board staff provided the applicant a copy of the clemency guidance (Exhibit C).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

POST-SERVICE INFORMATION

On 4 Jan 22, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 7 Feb 22 (Exhibit L).  According to the report, the applicant was arrested on 8 Aug 09 for disorderly conduct for intoxication (dismissed) and battery of spouse and again on 25 Jan 10 for disorderly conduct and a probation violation, rearrested for battery of spouse.  In support of his request for clemency, the applicant submitted the following additional new evidence: (1) a personal statement and (2) numerous character reference letters. 

He is an alcoholic who has not had a drink in 10 years.  However, he will always be an alcoholic.  It is only through working an Alcoholics Anonymous (AA) programs, and his sponsor, coupled with the grace of God and wonderful support from his family, he is able to make this clear-eyed and sober request to the Board for clemency.   He lived and breathed the Air Force, unfortunately, he began to live and breathe alcohol too, which resulted in his rightful court-martial conviction.  He was a very sick man, and his alcohol abuse transformed every facet of his life, which resulted in a BCD, reduction in grade to E-2 and 3-months confinement. While he did not believe it at the time, this punishment was entirely warranted. He now feels he was actually given leniency.

One of the most important lessons sobriety has taught him was to accept full responsibilities for his actions. Placing blame and pointing fingers is the signature move of an individual suffering from addiction, and he mastered it; never taking personal responsibility of his actions. Today, he takes full ownership and accountability for all of his actions, good and bad and he has stopped trying to control situations. AA teaches one to "Let go and let God." That motto has served him well. 

He has and will always remain a staunch recruiter for the Air Force. This organization that gave him so much remains very much a constant source of pride in his life. In his twenty years, he has received numerous accolades and outstanding performance reports, which are included for the Board's review. They are a proud representation of how he conducted himself for the majority of my career.

Since moving to XXXX in Sep 11, he managed a large helpdesk for 10 years and was very successful at it. He was promoted to helpdesk manager after working 3 years as supervisor and, at one point, directly managed over 50 employees.  He was often a sympathetic ear and gave many "second" chances to improve for retention. He enjoyed hiring individuals who were "down on their luck.”

His 10 year old daughter has never seen him take a drink of alcohol and, God willing, she never will. His life is now complete, and he has come full circle. He finds himself in the prized position wherein people trust him again. His selfish, self-serving traits have been replaced with healthy, honest, and sober living. He likes himself again and loves his wife and family. He has a wonderful, personal relationship with God. It is his one remaining wish, however, is that the nature of his discharge be upgraded so he can again hold his head high when he speaks of about his twenty years in the service. While on active duty, he had two assignments with the Reserve Officer Training Corps (ROTC).  He loved this job and would be ecstatic to find himself working a Junior ROTC program in the local area. However, the current nature of his discharge makes this impossible.  Bad Conduct is the badge of dishonor he must wear unless the Board Panel sees it in their hearts to allow for a clemency upgrade to either general or honorable.  He implores the board to consider upgrading his discharge.

The applicant's complete response, with attachments, is at Exhibit L.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  As noted above, the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with Title 10, United States Code, § 1552(f), the Board’s actions 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.  The Board finds no evidence which indicates the applicant’s service characterization, which had its basis in his court-martial conviction and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the UCMJ.

Nonetheless, in the interest of justice, the Board considered upgrading the applicant’s discharge.  In support of his request for an upgrade, the applicant has provided an FBI report, a personal statement, and character statements.  Furthermore, he contends he was a hopeless alcoholic without a chance for rehabilitation and his BCD was absolutely deserved taking full responsibility for his actions.  This disease ruined his military career and his first marriage; however, he has now been sober for almost 10 years.  The Board contemplated the many principles included in the Wilke Memo to determine whether to grant relief based on fundamental fairness.  However, the Board does not find the evidence presented is sufficient to conclude the applicant’s post-service activities overcame the misconduct for which he was discharged.  This Board very carefully weighs requests to upgrade the character of a discharge and in doing so, considers whether the impact of an applicant's contributions to his or her community since leaving the service are substantial enough for the Board to conclude they overcame the misconduct that precipitated the discharge and whether an upgrade of the discharge would create a larger injustice to those who served honorably and earned the characterization of service the applicant seeks.  While the applicant has presented some supporting statements indicating he has apparently made a successful post-service transition, the Board does not find the documentation sufficient to conclude they should upgrade the applicant’s discharge at this time.  In this respect, the supporting statements from the applicant’s co-workers and family indicate their admiration for the applicant and the way he has lived his life before his entry into the service, during his service, and since his separation.  However, these statements do not provide his impact in the community and if the impact is so admirable the Board could conclude an upgrade of his discharge would not constitute an injustice to those who have earned this characterization of service.  In addition, the applicant has provided an FBI report indicating he has had some criminal activity since his discharge.  While, the incidents occurred over 10 years ago, and given the evidence presented, the Board does not find the applicant’s submission sufficient to grant the requested relief.  

The applicant retains the right to request reconsideration of this decision, which could be in the form of a personal statement, character statements, or testimonials from community leaders/members specifically describing how his efforts in the community have impacted others.  Should the applicant provide documentation pertaining to his post-service accomplishments and activities, this Board would be willing to review the materials for possible reconsideration of his request based on clemency and to ensure fundamental fairness.  Therefore the Board recommends against correcting the applicant’s record.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2008-03079-3 in Executive Session on 29 Sep 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit F:	Record of Proceedings, w/ Exhibits A-E, dated 3 Dec 09.
Exhibit I:  Addendum Record of Proceedings, w/ Exhibits G-H, dated 14 Dec 17.
Exhibit J:  Application, DD Form 149, w/atchs, dated 14 Jun 21.
Exhibit K:	Non-viable Letter, SAF MRBC (Clemency Guidance), dated 4 Jan 22,
Exhibit L:	Applicant’s Response, w/atchs, dated 7 Feb 22.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.