RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-03217 INDEX CODE:	110.00

COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His bad conduct discharge (BCD) be upgraded to honorable.

APPLICANT CONTENDS THAT:
He served a lot of time in the Air Force, and for what he did, his punishment was overkill. He did not kill anyone, or steal a million dollars, or do drugs. He made a big mistake. He should not have to pay for it for the rest of his life.

The applicant's complete submission is at Exhibit A.

STATEMENT OF FACTS:
The applicant enlisted in the Air Force on 9 Dec 74 and was progressively promoted to the rank of staff sergeant.

On 18 Mar 92, he was tried by a general court-martial at Keflavik Naval Air Station, Iceland, and he was charged with one specification of conspiracy to commit an offense under the Uniform Code of Military Justice (UCMJ); one specification of making a false official statement; one specification of adultery; and one specification of obstruction of justice. He pled guilty to the charges and specifications. He was sentenced by a military judge to a bad conduct discharge (BCD), and confinement at hard labor for seven months.

On 1 May 92, the convening authority approved the sentence as adjudged. The Air Force Court of Military Review affirmed the findings and sentence on 10 Sep 93.

The United States Court of Military Appeals denied the applicant’s petition for review of his conviction on 31 Jan 94, making the findings and sentence in his case final and conclusive under the UCMJ.

As a result, the applicant’s discharge was executed on 2 Mar 94. He was credited with 19 years, 3 months, and 6 days of active

military service. He had a total of seven months of lost time due to confinement.

Pursuant to the Board’s request on 9 Jan 09, the Federal Bureau of Investigation, Clarksburg, West Virginia, indicated on 9 Jan 09, that, on the basis of the data furnished, they were unable to locate an arrest record (Exhibit C).

On 26 Jan 09, a request for post-service information was forwarded to the applicant for response within 30 days. In response to our request the applicant provided a personal statement and a character reference letter, which is attached at Exhibit G.

AIR FORCE EVALUATION:
AFLOA/JAJM reviewed this application and recommends denial. The application is untimely and the applicant’s contentions are without merit, there is no basis for upgrading the bad conduct discharge.

The applicant has identified no error or injustice related to his prosecution or the sentence. The applicant pled guilty at trial to the charges and specifications as was agreed to in the pretrial agreement. Prior to accepting his guilty plea, as evidenced by the record of trial, the military judge ensured the applicant understood the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea was accepted by the court. The imposed sentence was well below the maximum possible sentence of a dishonorable discharge, confinement for six years, total forfeitures of pay and allowances, and reduction to the grade of airman basic and even below the agreed limit on confinement in the pretrial agreement.

While clemency may be granted under 10 U.S.C., 1552 (f)(2), the applicant provides no justification for his request, and it is not warranted in this case. The applicant has not submitted with his application even so much as a character statement attesting to any improvement in his behavior in the intervening years. A BCD is designed as a punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature. A BCD is more than merely a service characterization, but as defined under the Rules it is a punishment for the crimes the applicant committed while a member of the Armed Forces. The applicant’s sentence to a BCD, and confinement for seven months was well within the legal limits and was an appropriate punishment for the offenses committed. The mere fact that 16 years have passed since the applicant’s court-martial does not erase this past criminal conduct or make his BCD any less appropriate for the offenses committed. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority over
16 years ago when the facts and circumstances were fresh.

Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ Benefit Program was to express thanks to 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 the veteran was discharged or dismissed by reason of the sentence of a general court-martial. It would be offensive to all those who served honorably to extend the same benefits to someone who committed crimes such as the applicant’s while on active duty.

The complete JAJM evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 12 Dec 08, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received.

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 error or injustice. The applicant’s submission was thoroughly reviewed, and his contentions were duly noted. However, we do not find his assertions, in and of themselves, sufficiently persuasive to override the rationale provided by the Chief, Military Justice Division. The applicant’s discharge had its basis in his trial and conviction by general court-martial.  After careful consideration of the available evidence, we found no indication that the actions taken to effect his discharge were improper or based on factors other than his own misconduct. We therefore conclude that the discharge was proper and the characterization of his service was appropriate to the existing circumstances. We considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis.

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-2008-03217 in Executive Session on 24 March 2009, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member
The following documentary evidence was considered:
Exhibit A.	DD Form 149, dated 8 Jul 08, w/atch. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	FBI Negative Reply, dated 9 Jan 09.
Exhibit D.	Memorandum, AFLOA/JAJM, dated 18 Nov 08. Exhibit E.	Letter, SAF/MRBR, dated 12 Dec 09..
Exhibit F.	Letter, AFBCMR, dated 26 Jan 09. Exhibit G.	Letter, Applicant, undated, w/atch.

Panel Chair