RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02228 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded so he can receive Department of Veteran Affairs (DVA) benefits. _________________________________________________________________ APPLICANT CONTENDS THAT: His service was honorable, except for 11 months of his 6-year career. Part of the reason he went absent without leave (AWOL) was due to his request for emergency leave being denied. He requested a discharge. His life has now changed, but he is still being penalized. In support of his appeal, the applicant provides a personal letter. A copy of the applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states there is no way to accurately ascertain the facts of the military justice action undertaken against the applicant, as his personnel records could not be located and are believed to have been destroyed in the National Personnel Records Center fire of 1973. The applicant complains that he was discharged with a BCD on 23 June 1973. He asserts his conviction was for an unauthorized absence of 11 months during the Vietnam War. Available military justice records indicate he was tried by general court-martial and received a sentence that required appellate review under Article 66, Uniform Code of Military Justice (UCMJ). By implication, that sentence either included a punitive discharge, which the applicant states was a BCD, confinement for a year or more, or both. Consequently, there is no way to either corroborate or refute the representations in the application or accompanying letter. However, it is noted that his letter indicates that he absented himself without authority, remained absent for 11 months, and voluntarily turned himself in to military authorities. JAJM indicates that under Title 10, United States Code (USC), Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Correction of Military Record’s (AFBCMR) ability to correct records related to courts- martial, is limited. Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ. Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set-aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). It is JAJM’s opinion that while clemency may be granted under Title 10 USC Section 1552 (f) (2), the applicant provides no justification for his request. A sentence to a BCD would have been within the maximum authorized punishment for such an offense. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority 37 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. JAJM indicates that not only did the applicant fail to allege an error or injustice; he provided no excuse or reason for his delay in submitting an application in over 34 years. Accordingly, they recommend the Board deny the applicant’s requested relief as untimely, but if the Board considers waiver of the time limitation appropriate, they recommend the Board deny the application on its merits. The complete JAJM evaluation is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 11 February 2011, 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 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. Furthermore, we do not find clemency is appropriate in this case since the applicant has not provided any evidence concerning his post-service activities. Therefore, the applicant’s request is not favorably considered. _________________________________________________________________ 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 AFBCMR Docket Number BC-2010-02228 in Executive Session on 24 March 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-02228: Exhibit A. DD Form 149, dated 4 Jun 10, w/atch. Exhibit B. Letter, AFLOA/JAJM, not dated. Exhibit C. Letter, SAF/MRBR, dated 11 Feb 11.