RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-04069 INDEX CODE: 106.00 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to general (under honorable conditions) discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: His records have been corrected and he has been issued several DD Form 214s and a DD Form 215, as well as documents which noted his eligibility for benefits. In addition, records within the Department of Veterans Affairs stated he has been issued an honorable discharge. Meanwhile, he lost all important military documents during hurricane Katrina. His problem stemmed from issues with his ex-wife, who was also on active duty in the Air Force. The military authorities investigated him for anything his ex-wife would make-up. He selected a general court-martial because he wanted military members to hear his case. The Air Force Office of Special Investigations (OSI) investigated him for eight months and he was facing 37 years confinement. He was offered two years confinement with a special court-martial, but he knew the truth would set him free. He now wishes he would have taken the two years. In support of his application, the applicant provides a copy of a request to the National Personnel Records Center and a copy of DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States. Applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: Applicant enlisted in the Regular Air Force on 15 August 1985 and was progressively promoted to the grade of sergeant. On 22 July 1992, he was tried by a general court-martial after being charged with four specifications involving wrongful use, possession and distribution of marijuana, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). He pled guilty to the charges and specifications. He was sentenced to a BCD, confinement for eight months, forfeiture of $400.00 pay per month for eight months, and reduction to the grade of airman basic. On 29 September 1992, the convening authority approved the findings and sentence as adjudged. The Air Force Court of Military Review affirmed the findings and sentence on 14 July 1993. The applicant did not petition the United States Court of Military Appeals for review of his conviction; therefore, the findings and sentence in his case were final and conclusive under the UCMJ. He was discharged on 9 October 1994 after serving 8 years, 7 months and 13 days on active duty. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report which is at Exhibit C. A copy of the FBI report and a request for post-service information were forwarded to the applicant on 11 August 2009 for review and response within 30 days (see Exhibit E) ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant's request and states the mere fact that 17 years have passed since his court- martial does not erase his past criminal conduct or make his bad conduct discharge any less appropriate for the offenses he committed. The issues raised by the applicant do not constitute an error or injustice such that the Board should take any action with regard to his court-martial. His statements do not comport with what is contained in the record of trial in this case. He says he was offered a special court-martial where he would get two years of confinement. This does not make sense, since the maximum allowable sentence to confinement at a special court- martial in 1992 was six months. It also does not make sense since the applicant was ultimately sentenced only to eight months. The applicant's statement that he selected a general court-martial so that he could have his case heard by a military members is also confusing. Military members are available at special courts-martial. In any case, the record of trial shows the applicant submitted a pretrial agreement with a limitation on confinement (not in excess of five years), in exchange for which he agreed to plead guilty and have his case heard by a military judge. The terms of the pretrial agreement in this case contradict the applicant's stated reason for selecting a general court-martial. Ultimately, the applicant pled guilty at trial to the charge and specifications as was agreed to in the pretrial agreement. Furthermore, the applicant's rights throughout the trial were observed. Prior to accepting his guilty plea, the military 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 military judge explained the elements and definitions of the offenses to which the applicant pled guilty, and the applicant explained in his own words why he believed he was guilty. On the court's acceptance of the applicant's guilty plea, it received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The applicant made an unsworn statement in his own behalf and the defense also introduced some character statements pointing out what a hard- worker the applicant was. The military judge took all of these factors into consideration when imposing the applicant's sentence. The imposed sentence was well below the maximum possible sentence of a dishonorable discharge, confinement for 34 years, total forfeitures of pay and allowance, 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, Section 1552(f)(2), the applicant provides no justification for his request, and clemency 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 is behavior in the intervening years. The fact the applicant may have lost the copies of his official documentation should not have prevented him from obtaining supporting letters from employees, family members and neighbors, who could attest to the difficulties in his life and/or the positive impacts he has made his community. A bad conduct discharge is more than merely a service characterization, but as defined under the Rules for Court-Martial; it is a punishment for the crimes the applicant committed while a member of the armed forces. The fact the applicant's sentence included a bad conduct discharge is well within the legal limit of the court-martial and was an appropriate punishment for the offenses committed. 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 24 April 2009 for review and comment within 30 days. As of this date, this office has received no 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 error or injustice. We note 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 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. We also find no evidence which indicates the applicant’s service characterization, which had its basis in his conviction by a general court-martial and was a part of a pre-trial agreement and the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). We have considered applicant's overall quality of service, the general court-martial conviction which precipitated the discharge, and the seriousness of the offense for which convicted, i.e., wrongfully use, possession and distribution of marijuana. Based on the evidence of record, we cannot conclude that clemency is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. ________________________________________________________________ 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- 2008-04069 in Executive Session on 22 September 2009, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2008-04069 was considered: Exhibit A. DD Form 149, dated 1 Nov 08, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report, dated 28 Jul 09. Exhibit D. Letter, AFLOA/JAJM, dated 27 Mar 09. Exhibit E. Letter, SAF/MRBR, dated 24 Apr 09. Exhibit F. Letter, AFBCMR, dated 11 Aug 09, w/atchs.