RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-02677 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ THE APPLICANT REQUESTS THAT: Her bad conduct discharge (BCD) be upgraded. ________________________________________________________________ THE APPLICANT CONTENDS THAT: Prior to the incidents which led to her discharge, she was an honorable airman, held a top secret security clearance, and showcased the exemplary character of the armed forces. She has been an outstanding citizen since leaving the service and has been employed with the same job for the last 14 years and has not been in any trouble. The applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: While serving in the grade of senior airman, the applicant was tried by a General Court-Martial and charged with one specification of wrongful possession of cocaine with intent to distribute and one specification of wrongful distribution of cocaine, both in violation of Article 112a, Uniform Code of Military Justice (UCMJ); and one specification of conspiracy to commit an offense under the UCMJ, to wit: wrongful distribution of cocaine, in violation of Article 81, UCMJ. The applicant pled not guilty to the charges and specifications. She was found guilty of the violations of Article 112a, UCMJ, and not guilty of the violation of Article 81, UCMJ. She was sentenced to a bad conduct discharge, confinement for nine months and reduction to airman basic (E-1/AB). On 20 Dec 93, the convening authority approved the findings and only so much of the sentence as provided for a BCD, confinement for six months and reduction to the grade of airman basic. On 13 Sep 94, the Air Force Court of Criminal Appeals affirmed the findings of guilty and the sentence in the applicant's case. The applicant petitioned the United States Court of Appeals for the Armed Forces for review of her case, but that petition was denied on 23 Nov 94, making the findings and sentence in her case final and conclusive under the UCMJ. The applicant was discharged by General Court-Martial Order #14, on 19 Jul 95, with a reason of separation of court-martial, with service characterized as bad conduct. She was credited with 6 years, 10 months, and 27 days of active duty service (excluding lost time from 23 Sep 93 through 17 Feb 94 due to confinement). Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report, which is attached at Exhibit C. ________________________________________________________________ THE AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, stating, in part, the applicant does not allege error or injustice in her court-martial. The record shows that she was afforded all of the procedural rights offered by the court-martial and appellate process. The applicant pled not guilty to the offenses and was able to have an impartial panel of officer members decide whether the evidence showed, beyond a reasonable doubt, that she had committed the offenses to which she pled not guilty. During the pre-sentencing phase of the trial, the members heard evidence in aggravation, as well as extenuating or mitigating evidence from the applicant. The applicant provided an unsworn statement in which she expressed remorse and asked the members for leniency. The members evaluated the evidence and determined that the appropriate punishment for the offenses committed was a BCD, confinement for nine months and reduction to airman basic. As an act of clemency, the convening authority later reduced the amount of confinement to six months. Additionally, after the trial, the applicant's case was automatically referred to the Air Force Court of Criminal Appeals. An appellate defense counsel was appointed to represent her. After the Air Force Court affirmed the finding and sentence, she had the opportunity to petition the Court of Appeals of the Armed Force for review of her case. There is no evidence of error or injustice in the process of the applicant's court-martial or appeal. While clemency may be granted under 10 U.S.C. § 1552(f)(2), the applicant provides no justification for her request, and clemency is not warranted in this case. She indicates that she was an exemplary airman before her crimes and has stayed out of trouble since she was discharged from the Air Force. She provides the Board no documentation or letters of support to support either of these contentions. There is no evidence in the record of trial or in the application of how she has grown or learned from her past mistakes. The inclusion of a BCD in the applicant's sentence was well within the legal limits and appropriate considering the nature and severity of her crimes. The complete AFLOA/JAJM evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 28 Oct 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). On 30 Apr 12, a copy of the FBI report was forwarded to the applicant for review and comment within 15 days. At that time, she was also invited to provide additional evidence pertaining to her activities since leaving the service (Exhibit F). ________________________________________________________________ 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 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 that indicates the applicant’s service characterization, which had its basis in her conviction by general 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 general court-martial conviction which precipitated the discharge, and the seriousness of the offense to which convicted, and having found no error or injustice with regard to the actions that occurred while the applicant was a military member, we are not persuaded the characterization of the applicant’s discharge warrants an upgrade to general on the basis of clemency. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application. 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 the Board's understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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-2011-02677 in Executive Session on 16 May 2012, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 8 Jul 11. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation. Exhibit D. Letter, AFLOA/JAJM, dated 6 Oct 11. Exhibit E. Letter, SAF/MRBR, dated 28 Oct 11. Exhibit F. Letter, AFBCMR, dated 30 Apr 12. Panel Chair