RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01994 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: He desires a discharge that does not prevent him from getting a weapons permit issued in his name. He believes his defense counsel misrepresented him and was neglectful with information that could have helped his case. Since his discharge from the Air Force, he has lived his life within the boundaries of the law and is now a registered security guard. The applicant provides no supporting documentation. The applicant’s complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 28 September 1989. The applicant was tried by a Special Court-Martial on 23 August 1996 and pled guilty to stealing military property, of a value of over $4,000.00, in violation of Article 121, Uniform Code of Military Justice (UCMJ). He was found guilty and the sentence was adjudged on 23 August 1996. He was sentenced to a BCD, confinement for 3 months, and a reduction to the grade of airman. On 19 November 1998, the applicant was discharged with a BCD. He served 8 years, 11 months and 6 days on active duty, with days of lost time from 23 August 1996 through 6 November 1996. _________________________________________________________________ AIR FORCE EVALUATION: AFLSA/JAJM recommends denial. JAJM states the applicant’s sentence was within the legal limits and was an appropriate punishment 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 12 years ago when the facts and circumstances were fresh. Granting clemency in this case would be unfair to those individuals who honorably served their country while in uniform. The applicant has provided no basis for granting clemency other than his assertion that he has “lived a life within the boundaries of the law” since his discharge. It would be offensive to all those who served honorably to extend the same service characterization and benefits to someone, such as the applicant, who committed a crime while on active duty that resulted in a punitive discharge. After a review of the available records, clemency or other administrative relief is not appropriate. Further, the application is untimely. The alleged injustice, i.e., ineffective assistance of counsel, was clearly known to the applicant and could have been identified not later than during the appellate process. The applicant has provided no excuse or reason for the delay. The JAJM complete evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 10 December 2010, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit D). 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 an error or injustice. After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust. In view of the foregoing, we agree with the opinion and recommendation of the Military Justice Division and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of the existence of either an error or an injustice. Therefore, based on the evidence of record, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an error or injustice; the application was denied without a personal appearance; and 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 AFBCMR Docket Number BC-2010-01994 in Executive Session on 1 February 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-01994 was considered: Exhibit A. DD Form 149, dated 31 May 2010. Exhibit B. Applicant's Master Personnel Record. Exhibit C. Letter, AFLSA/JAJM, not dated. Exhibit D. Letter, SAF/MRBR, dated 10 December 2010.