RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-02828 INDEX CODE:	110.02
COUNSEL:	NONE
HEARING DESIRED:	NOT INDICATED

APPLICANT REQUESTS THAT:
Her bad conduct discharge (BCD) be upgraded.

APPLICANT CONTENDS THAT:
Her discharge was a result of personal life traumatic events that occurred when she was 20 years old. She is now 46 years old and has graduated college with a medical degree. She currently has a great career in nursing.

Her oldest child was killed in 1983 in a house fire and this turned her life around. She has three daughters and would like to think they will not find the discharge in her records in the future.

Her past record is haunting and she would like to have it erased from her past. Many years have passed and she would like to be proud of her military experience and able to share it.

The applicant's complete submission is at Exhibit A.

STATEMENT OF FACTS:
On 16 Nov 82, the applicant absented herself from her unit without authority. She remained absent without leave (AWOL) from her unit until she was apprehended by civilian law enforcement authorities on 7 Dec 82.

On 15 Dec 82, she failed to show for her assigned duty and remained absent until 16 Mar 83, when she was apprehended by civilian law enforcement authorities.

She was tried by a Special Court-Martial. She was charged with one specification of being AWOL, in violation of Article 86, Uniform Code of Military Justice (UCMJ), and one specification of desertion, in violation of Article 85, UCMJ. She pled guilty the charge and specification of AWOL and not guilty to desertion, but guilty to the lesser included offense of AWOL.

A military judge found her guilty of two charges and specifications of AWOL and sentenced her to a BCD, confinement (at hard labor) for four months, forfeiture of $100 per month for four months, and reduction to airman basic.

On 21 May 83, the convening authority approved the sentence with the exception of confinement (at hard labor) for 70 days. The Air Force Court of Military Review affirmed the findings and sentence on 6 Oct 83. Neither the Judge Advocate General nor the applicant petitioned the U.S. Court of Military Appeals for review of the conviction; therefore, the findings and sentence became final and conclusive under the UCMJ. As a result, the applicant’s discharge was executed on 31 Oct 84.

Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided an investigative report which is at Exhibit C.

AIR FORCE EVALUATION:
AFLOA/JAJM recommends denial. JAJM states the applicant has identified no error or injustice related to her prosecution or the sentence. An examination of the Record of Trial indicates that the applicant was afforded all the procedural rights offered by the court-martial and appellate process. During his inquiry into the applicant’s guilty pleas, the military judge carefully explained, in detail, each element of the offenses to the applicant. The military judge ensured that the applicant was convinced of her own guilt and that there were no defenses to the crime. The military judge would not have accepted the guilty plea unless he was convinced of the applicant’s guilt.

Additionally, after the trial, the convening authority granted the applicant clemency by approving less time in confinement in the final action on the applicant’s case. Since the applicant received a punitive discharge, her case was automatically referred to the Air Force Court of Military Appeals. An appellate defense counsel was appointed to represent her throughout the process. After the Air Force Court affirmed the findings and sentences, the applicant was given the opportunity to petition the United States Court of Military Appeals. There is no evidence of error or injustice in the process of the applicant’s court-martial or appeal.

While clemency may be granted under Title 10, United States Code (U.S.C.), Section 1552(f)(2), the applicant provides no justification of her request, and clemency is not warranted in this case. The applicant has not submitted with her application even so much as a character statement attesting to any improvement in her behavior in the intervening years. Rule for Courts-Martial 1003(b)(8)(C) sets forth that a BCD is more than merely a service characterization, but is a punishment for crime

the applicant committed while a member of the Armed Forces. The applicant’s sentence (as approved by the convening authority) to a BCD, confinement (at hard labor) for 70 days, forfeiture of
$100 per month for four months, and reduction to airman basic, was well within the legal limits and was an appropriate punishment for the offenses committed.

While it is laudable that the applicant has apparently turned her life around by raising a family and graduating college with a nursing degree, it does not erase her past criminal conduct or make her BCD any less appropriate for the two instances of AWOL terminated by apprehension. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority over 25 years ago when the facts and circumstances were fresh. A BCD was and continues to be part of a proper sentence and properly characterizes her service.

Congress’ intent in setting up the Veterans’ Benefits Program was to express thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy action, and suffering financial hardships. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where a veteran was discharged or dismissed by reason of the sentence of a general court-martial. See Title 38, U.S.C., Section 5303(a). It would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime such as the applicant’s while on active duty.

The complete AFLOA/JAJM evaluation is at Exhibit D

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air  Force evaluation was forwarded to the applicant on 5 Dec 08 for review and comment within 30 days (Exhibit E). Additionally, a copy of the FBI report and a request for post-service information was forwarded to the applicant on 22 Jan 09 for review and comment within 30 days (Exhibit F). As of this date, this office has not received a response.

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. 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. After reviewing all the evidence presented, we are not persuaded that action to upgrade the applicant's discharge based on clemency is appropriate. The former member's discharge was based on her trial and conviction by a special court-martial.  While the evidence provided indicates that the applicant has made a successful post-service adjustment in view of the seriousness of the misconduct she committed, there is nothing in the available record that would cause us to disturb the actions of the reviewing officials in this case. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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.

The following members of the Board considered Docket Number BC- 2008-02828 in Executive Session on 3 March and 5 March 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member

The following documentary evidence was considered Docket Number BC-2008-02828:

Exhibit A.	DD Form 149, dated 29 Jul 08.
Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	FBI Report.
Exhibit D	Memorandum, AFLOA/JAJM, dated 28 Oct 08. Exhibit E.	Letter, SAF/MRBR, dated 5 Dec 08.
Exhibit F.	Letter, AFBCMR, dated 22 Jan 09, w/atchs.