SECOND ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2009-01230-3

xxxxxxxxxxxxxx	COUNSEL: NONE

 	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board reconsider his request that his under other than honorable conditions (UOTHC) discharge be upgraded.

RESUME OF THE CASE

The applicant is a former Air Force airman basic (E-1) who was credited with 1 year, 10 months, and 13 days of active service.   

On 26 August 09, the Board considered and denied his request that his UOTHC discharge be upgraded, finding that the applicant had provided insufficient evidence of an error or injustice to justify relief stating he provided no evidence which would lead the Board to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. The Board considered upgrading the discharge based on clemency; however, did not find the evidence presented sufficient to recommend granting the relief sought on that basis.

On 18 Nov 20, the Board reconsidered and denied his request that his UOTHC discharge be upgraded, finding that the applicant had provided insufficient evidence of an error or injustice to justify relief.  Again the Board considered upgrading the discharge based on clemency; however, given the applicant did not respond for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI); the Board found no basis to do so.

For an accounting of the applicant’s original requests and the rationale of the earlier decisions, see the AFBCMR Letters and Records of Proceedings at Exhibits E and H. 

On 21 Feb 21, the applicant requested reconsideration of his request to upgrade his UOTHC discharge.   He again contends he has been drug free for approximately 38 years.  He has completely turned his life over to Christ.  He is part of the music ministry at a local church. He also has two degrees (Radio and Television Broadcast Journalism and Computer Science).  Through all the trials and tribulation, God has stood by him.  Now that he is within his final chapter of life, God has given him an opportunity to serve as an employee for a drug treatment facility.  He has been successful in helping his clients turn their life around. He did not realize the FBI report was critical to his case and wants to point out that he has not appeared in court since 2008.  In support of his reconsideration request, the applicant submitted the following new evidence: (1) personal statement and (2) FBI report.  According to the report, after his discharge in 1973, the applicant was arrested on 28 Mar 06 for aggravated forgery and on 23 Mar 08 for domestic assault and was sentenced to one-year probation.  

The applicant’s complete submission is at Exhibit I.

APPLICABLE AUTHORITY/GUIDANCE

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 22 Jul 21, the Board staff provided the applicant a copy of the clemency guidance (Exhibit J).

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 remains unconvinced the evidence presented demonstrates an error or injustice.  Furthermore, the Board applied clemency guidance to the new evidence submitted by the applicant; however, it is not sufficient to overturn the previous Board’s decision.  Considering the applicant had two arrests post-service for aggravated forgery and domestic assault compiled with his post-service accomplishments, the Board felt this evidence did not overcome the severity of misconduct.  Therefore, the Board recommends against correcting the applicant’s records.

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-2009-01230-3 in Executive Session on 18 Aug 21:

, Panel Chair 
, Panel Member
, Panel Member

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

Exhibit E:	Record of Proceedings, w/ Exhibits A-D, dated 26 Aug 09.
Exhibit H:	Addendum Record of Proceedings, w/ Exhibits F-G, dated 18 Nov 20.
Exhibit I:	Application, DD Form 149, w/atchs, dated 21 Feb 21.
Exhibit J:  Email, SAF/MRBC, w/atch Clemency Bulletin, dated 22 Jul 21.

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.