RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01174 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to an general (under honorable conditions) discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: He was found guilty of one count of using marijuana and one count of distributing marijuana. The punishment he received was excessive as there was no proof of the charges. In support of his appeal, the applicant provides a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States. The applicant's complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who entered active duty on 10 May 1982 in the grade of airman basic (E-1). He served as an Air Cargo Specialist and was progressively promoted to the grade of senior airman (E-4). On 19 June 1987, the applicant was tried at a special court- martial for one specification of wrongful use of marijuana, one specification of wrongful distribution of marijuana, and one specification of wrongful possession of Lysergic Acid Diethylamide (LSD), all in violation of Article 112a, Uniform Code of Military Justice (UCMJ). The applicant pled guilty to the wrongful use of marijuana, but not to the other specifications. He was found guilty by a military judge of wrongful use and distribution of marijuana, and not guilty of wrongful possession of LSD. Based on the findings of guilty, he was sentenced to a BCD, four months confinement, total forfeiture of all pay and allowances, and reduction to the grade of airman basic. On 28 August 1987, the convening authority approved the findings and sentence as adjudged. The Air Force Court of Military Review affirmed the findings and sentence on 1 December 1987. On 25 February 1988, the United States Court of Military Appeals denied the applicant’s request for review of his conviction, making the findings and sentence in his case final and conclusive under the UCMJ. As a result, the applicant’s discharge was ordered to be executed on 21 March 1988. He served 5 years, 8 months, and 26 days on active duty with lost time for the period 19 June 1987 through 27 September 1987. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report (Exhibit C). On 21 June 2011, the applicant was given an opportunity to submit comments about his post service activities and in response to the FBI Report (Exhibit F). As of this date, this office has received no response. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. 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). JAJM states the applicant’s contention that there is no proof of the charges brought against him is incorrect. An examination of the record of trial shows that of the two specifications of which he was found to be guilty at trial, one of the specifications was due to his plea of guilty – wrongful use of marijuana. Prior to accepting his guilty plea, 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 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. The applicant also pled not guilty to wrongful distribution of marijuana. The government’s evidence consisted of two fellow airmen who testified that they used drugs with the applicant or were aware of his drug use. One of the airmen stated that the applicant supplied the marijuana that they both used approximately three or four times. The defense also put on witnesses who testified that the applicant had not, in their experience, distributed marijuana. The applicant testified under oath that he did not distribute marijuana. The military judge was in the best position to compare the testimony and the credibility of the witnesses on the issue of whether the applicant had wrongfully distributed marijuana and the evidence in the Record of Trial supports the military judge’s finding. There is no indication that the military judge acted in an arbitrary or capricious manner in finding the applicant guilty of the offense and certainly the applicant’s contention that there was no proof of this specification is unfounded and incorrect. The applicant also states the BCD he received as part of his sentence was “excessive punishment.” After the applicant was found guilty of the offenses, the court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The applicant made a sworn statement in his own behalf and the defense also introduced some evidence in support of leniency for the applicant. The military judge took this information into consideration when imposing the applicant’s sentence. The inclusion of a BCD in the applicant’s sentence is legal and appropriate considering the offenses of which he was found guilty. In fact, the applicant’s sentence is much less than the maximum allowed for the offenses. His punishment could have included a dishonorable discharge, 20 years confinement, reduction to the grade of airman basic, and forfeiture of all pay and allowances. It is JAJM’s opinion that while clemency may be granted under Title 10 USC Section 1552 (f)(2), the applicant has not provide any letters of support or any documentation to show why he deserves an act of clemency. Clemency in this case would be unfair to those individuals who honorably served their country while in uniform. The complete 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 20 May 2011 for review and comment within 30 days (Exhibit E). 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 find no evidence which indicates the applicant’s service characterization, which had its basis in his conviction by special court-martial and was a part of 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 the applicant's overall quality of service, the special court-martial conviction which precipitated the discharge, and the seriousness of the offense of which convicted, e.g., wrongful use and distribution of a controlled substance. Based on the evidence of record, we are not persuaded that the characterization of his discharge warrants an upgrade to general (under honorable conditions) on the basis of clemency. In view of the above, we conclude that no basis exists to grant favorable action on his request. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing 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-2011-01174 in Executive Session on 10 November 2011, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-01174 was considered: Exhibit A. DD Form 149, dated 21 Mar 11, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFLOA/JAJM, dated 11 May 11. Exhibit E. Letter, SAF/MRBC, dated 20 May 11. Exhibit F. Letter, AFBCMR, dated 21 Jun 11, w/atch. Panel Chair