RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02656 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: 1. He be given an honorable discharge certificate for the period Jul 1979 to Mar 1984. 2. His Bad Conduct Discharge (BCD) for the period Mar 1984 to Feb 1990 be upgraded to “under other than honorable conditions.” ________________________________________________________________ APPLICANT CONTENDS THAT: During his court-martial his attorney was not fit to try his case because it was his first urinalysis case. Between 1983 and 1986 he worked for the Federal Prison Camp and had over 19 urinalysis tests. None of the tests were positive. He may have unknowingly ingested cocaine at a party after he tried someone’s cigar. He should at least be given recognition for his honorable service from 1979 through 1984. It has been over 19 years since he was discharged and he is getting older, his health is deteriorating, and he needs medication for these ailments. An honorable discharge will assist him with this. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 7 Jun 1979, the applicant enlisted in the Regular Air Force and on 28 Feb 1984, was discharged for the purpose of reenlistment. His service during this period was “honorable.” On 1 Mar 1984, the applicant reenlisted in the Regular Air Force and on 13 Feb 1990, he was separated with a BCD. DoDI 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/5 Series), states that Military Services not providing the DD Form 214 will furnish the Service member a DD Form 256, "Honorable Discharge Certificate." Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, date 1 Mar 2012 at Exhibit C. On 2 Mar 2012, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days (Exhibit F), as of this date, no response has been received by this office. On 2 Mar 2012, the AFBCMR was unable to located his Military Personnel Records (MPR) and his case was administratively closed (Exhibit G). On 21 Dec 2012 his MPR was located and his application was reopened The remaining 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 indicates that upgrading his discharge is not appropriate and his request should be denied as untimely or on the merits. JAJM states the applicant was afforded all of the procedural rights offered by the court-martial and appellate process. The applicant pled not guilty to the offense and was able to have an impartial panel of officer members decide if he was guilty beyond a reasonable doubt. The members evaluated the evidence and determined that the appropriate punishment for the offense committed by the applicant was a BCD, confinement for one year, total forfeiture of all pay and allowance and reduction to the grade of E-1. After the trial, his case was automatically referred to the Air Force Court of Military Review. An appellate defense counsel was appointed to represent him after the Air Force Court affirmed the finding and sentence. His case was also reviewed by the United States Court of Military Appeals. There is no evidence of error or injustice in the processing of the applicant’s court-martial or appeal. He alleges error in his case because his attorney was not fit to try his case, because it was the attorney’s first case. There is no information in the record of trial to show whether his attorney was dealing with a urinalysis case for the first time. The transcript of trial shows that the attorney engaged in zealous defense of the applicant throughout the entire process. JAJM states that while clemency may be granted, the applicant provides no justification for his request, and clemency is not warranted in this case. Clemency in this case would be unfair 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 sacrifices, separations from their family, facing hostile enemy action and suffering financial hardships. 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. This makes sense if the benefit program is to have any real value. It would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime such as the applicant’s while on active duty. The complete AFLOA/JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 5 Oct 2011, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office (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 error or injustice in regard to the applicant’s request that his BCD be upgraded to under other than honorable conditions. 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), our actions 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 considered upgrading the discharge on the basis of clemency; however, in view of the contents of the FBI identification record, we are not persuaded the characterization of the applicant’s discharge warranted an upgrade. 4. Notwithstanding the above, sufficient relevant evidence has been presented to demonstrate the existence of error or injustice regarding the applicant’s request that he be provided an honorable discharge certificate for his initial period of service from 7 Jun 1979 through 30 Apr 1984. In this respect we note that DoDI 1336.01 specifically states, “… Military Services not providing the DD Form 214 will furnish the Service member a DD Form 256, Honorable Discharge Certificate.” In view of this and since the applicant did not receive a DD Form 214 in conjunction with his discharge for immediate reenlistment, we believe he should be issued a DD Form 256 in accordance with the governing instruction for his initial period of service. Therefore, we recommend that the records be corrected to the extent indicated. 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 RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that he be issued an Honorable Discharge certificate for his honorable discharge on 28 Feb 1984. ________________________________________________________________ All members voted to correct the record as recommended. The following members of the Board considered Docket Number BC-2011- 02656 in Executive Session on 9 May 2013, under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the record as recommended. The following documentary evidence was considered in AFBCMR BC-2011- 02656: Exhibit A. DD Form 149, dated 10 Nov 2010, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report, dated 1 Mar 2012. Exhibit D. Letter, AFLOA/JAJM, dated 26 Sep 2011. Exhibit E. Letter, SAF/MRBR 5 Oct 2011. Exhibit F. Letter, AFBCMR, dated 2 Mar 2012. Exhibit G. Letter, AFBCMR, dated 2 Apr 2012. Panel Chair