RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02021 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His official records be corrected to update his Bad Conduct Discharge (BCD) to General (Under Honorable Conditions). 2. He be restored to his previous rank of Staff Sergeant (SSgt) with back pay and full retirement benefits. ________________________________________________________________ APPLICANT CONTENDS THAT: During his time on active duty, he made errors in judgment which resulted in his discharge and has affected his family and professional life. His life has changed and he is ashamed of his conduct as a young Airman. He is now a mentor and a very productive citizen. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant initially entered the Air Force on 18 Oct 73, and progressively rose to the rank of Staff Sergeant. On 16 Aug 91, the applicant’s commander ordered him to report to the Base Hospital Laboratory to submit a urine sample to be tested for abuse of drugs. On 16 Sep 91, the Wing Medical Group notified the applicant’s commander the applicant’s urine tested positive for cocaine. On 30 Sep 91, the applicant received a Letter of Reprimand, which was placed in an Unfavorable Information File (UIF). On 21 Nov 91, the applicant was convicted by Military Courts Martial of wrongful use of cocaine and three additional UCMJ violations. His sentence included 24 months confinement, reduction to the grade of Airman Basic (E-1), a Bad Conduct Discharge, and forfeiture of $400.00 per month for 3 months. On 4 Mar 93, the applicant was released from military confinement at Ft. Leavenworth, and placed on commandant’s parole. On 14 Jan 94, the applicant was placed back in confinement at Ft. Leavenworth for violating the terms of his parole, and was ultimately released from confinement on 1 Aug 94 and placed on appellate review leave. On 30 Aug 96, the applicant was furnished a Bad Conduct Discharge with a Narrative Reason of Separation of “Court Martial (Other).” On 11 Jan 13, a request for post-service information was forwarded to the applicant for review and comment within 30 days. In response, the applicant provides an expanded statement with additional information on his life story, both during and after his service in the Air Force. In addition, the applicant provides six letters of support from relatives and acquaintances (Exhibit G). The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or injustice. On 2 Jun 91, the applicant, then a staff sergeant, was stopped by a civilian police officer. The applicant consented to a breathalyzer test, which reflected an alcohol level of .11, above the legal limit of .08. A search of the applicant’s private belongings disclosed a bag containing .40 grams of cocaine. An ensuing urinalysis accomplished by the Air Force tested positive for cocaine. During the investigation, Air Force investigators discovered the applicant was writing checks knowing there were insufficient funds in these accounts. On 19 Nov 91, at a court-martial, before a panel of officer members, the applicant was found guilty of one specification of driving under the influence of alcohol, one specification of wrongful use of cocaine, and one specification of wrongful possession of cocaine, and two specifications of making, drawing, or uttering checks, drafts, or orders without specific funds. The applicant was sentenced to a BCD and reduction to airman basic, forfeiture of $400 pay per month for three months, and to be confined for twenty-four months. On 24 Jan 92, the convening authority approved the sentence as adjudged. On 15 Jun 93, the Air Force Court of Military Review disapproved the guilty finding of one of the specifications alleging the applicant drafted checks knowing there were insufficient funds in his account. Under 10 U.S.C. § 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts-martial is limited. Specifically, § 1552(f) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ. Additionally, § 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 § 1552(f) is that the Board 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). The applicant offers no allegation of injustice. He simply requests an upgrade to his bad conduct discharge because he has learned from his mistakes and would like to obtain medical treatment from the Veteran’s Affairs Office. The applicant alleges no error in the processing of the court-martial conviction against him and his record of trial shows no error in processing the court-martial. Upon the court’s finding of the applicant’s guilt, it received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The court members took all these factors into consideration when imposing the applicant’s sentence. Rule for Courts-Martial 1003(b)(C) states that a BCD “is designed as punishment for bad conduct.” It also indicates that a bad conduct discharge is more than merely a service characterization; it is a punishment for the crimes the applicant committed whole a member of the armed forces. The applicant’s sentence to a BCD, confinement, total forfeiture of all pay and allowances, and a reduction to airman basic was well within the legal limits and was an appropriate punishment for the offense committed. Additionally, clemency in this case would not be fair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ Benefits Program was to express thanks for veterans’ personal sacrifice, separations from family, facing hostile enemy action and suffering financial hardship. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. It would be an offense to all those who served honorably to extend the same benefits to someone who committed crimes such as the applicant’s while on active duty. Upgrading the applicant’s bad conduct discharge in not appropriate. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant reiterates that he fully accepts responsibility for his actions that led to his BCD, indicating that his behavior was due to severe personal stress at the time. His three month-old son had recently died and after returning from Korea, he found that his wife of 12 years had been having an extra-marital affair with their pastor. The eventual divorce meant that he lost his other two children as well. He was diagnosed with Hepatitis-C and suffered complete renal failure. He had been a model Airman for over 18 years. He served 24 months in a military prison and he feels that is adequate punishment. He is requesting clemency based on inequity for a one time isolated incident. He was not offered rehabilitation or psychological counseling (Exhibit E). ________________________________________________________________ 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. We took notice of the applicant’s complete submission, to include the evidence the applicant submitted in rebuttal to the Air Force advisory, in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. We note that 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 court-martial conviction 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 court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted. Based on the evidence of record, we cannot conclude that clemency is warranted. Therefore, we find no basis upon which to favorably consider this application. ________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material 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-2012-02021 in Executive Session on 20 Feb 13, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 May 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 17 Aug 12. Exhibit D. Letter, SAF/MRBR, dated 28 Aug 12. Exhibit E. Letter, Applicant, dated 13 Sep 12. Exhibit F. Letter, AFBCMR, dated 11 Jan 13, w/atch. Exhibit G. Letter, Applicant, undated, w/atchs.