RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03284 COUNSEL: HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to a general. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. On 2 May 08, he was diagnosed with Post-Traumatic Stress Disorder (PTSD). 2. He was never evaluated at the end of his term. His discharge paperwork was mailed to him and he was never offered drug counseling or rehabilitation. In support of his request, the applicant provides a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; AF Form 1613, Statement of Service; a doctor’s statement, and a general court-martial order. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 28 May 71, the applicant enlisted in the Regular Air Force. On 22 Sept 88, the applicant was tried by a General Court- Martial and pled guilty to one specification of wrongful possession of a controlled substance, in violation of Article 112a, Uniform Code of Military Justice (UCMJ) and one specification of attempting to possess a controlled substance, in violation of Article 80, UCMJ. He was sentenced by a military judge to a BCD, confinement for seven months and reduction to the grade of airman (E-2). On 18 Oct 88, the convening authority approved the findings and only so much of the sentence as called for a bad conduct discharge, confinement for five months, and reduction to airman was affirmed. On 20 Nov 88, the Air Force Court of Military Review affirmed the findings and the approved sentence. On 21 Dec 88, the applicant submitted a petition to the United States Court of Military Appeals for a grant of review of the Air Force Court’s decision. On 7 Apr 89, after a motion by appellate Government counsel, the United States Court of Military Appeals set aside the Air Force Court’s decision and returned the record of trial to the Air Force Court for further review. On 19 May 89, the Air Force Court issued its opinion concluding the applicant was not denied effective assistance of counsel affirming the findings and approved sentence. The applicant petitioned the United States Court of Military Appeals for review of the Air Force Court’s decision and, on 16 Aug 89, the Court denied the petition, making the findings and sentence in his case final and conclusive under the UCMJ. On 5 Oct 89, the applicant’s BCD was ordered to be executed. Pursuant to the Board’s request, the Federal Bureau of Investigations (FBI) Clarksburg, WV, states they were unable to identify an arrest record on the basis of the information furnished. On 10 May 12, the AFBCMR staff offered the applicant an opportunity to provide information pertaining to his activities since leaving the service (Exhibit H). The applicant responded with a personal letter. The applicant’s complete response is at Exhibit I. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of his request to upgrade his discharge to general. JAJM states the applicant has identified no error or injustice related to his prosecution or the sentence. An examination of the record of trial shows no error in the processing of the court-martial. The applicant pled guilty at trial to the charges and specifications. Prior to accepting his guilty plea, as evidenced by the record of trial, 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. While clemency may be granted under 10 U.S.C. §1552(f)(2), the applicant provides little justification for his request, and clemency is not warranted in this case. The main basis for the applicant’s request for clemency is that he has been diagnosed with PTSD, but the applicant has not provided sufficient evidence to support that the diagnosis has any connection to the applicant’s court-martial offenses. The applicant provides a letter from a doctor, dated 17 Feb 11, in which the doctor discusses a concussion the applicant received on 2 May 08 and noting how the applicant’s alcoholism and PTSD were “clouding the clinical picture” with regard to his recovery. Granting clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veteran’s Benefits program was to express thanks for veterans’ personal sacrifices, separations from 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 while on active duty. 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 28 Oct 11 for review and comment within 30 days (Exhibit E). As of this date, this office has not received a response. _________________________________________________________________ ADDITIONAL AIR FORCE EVAULAUTION: The Medical Consultant recommends denial. The Medical Consultant found no medical basis for the upgrade of discharge; except as a matter of compassion for access to care through the Department of Veterans Affairs (DVA). Had the applicant been a single time user/experimenter of marijuana, under today’s standards, he might warrant an upgrade to general (under honorable conditions) discharge. However, this does not appear to have occurred in the case under review. The Board should nevertheless give consideration of an upgrade as a matter of clemency. Addressing the applicant’s allegation that he never received a mental health evaluation, the record indicates that he did receive a mental health assessment prior to his confinement and a follow-up evaluation, at which time there was an ample opportunity to identify any residual mental defect or disclose any impairment related to PTSD or combat stress; no mental disorder was identifiable at the time of the applicant’s service. Other than the matter of clemency, considering the applicant’s current medical needs, the Medical Consultant opines the burden of proof has not been met to warrant consideration of the desired change of the record. The complete BCMR Medical Consultant’s evaluation is at Exhibit F. _________________________________________________________________ APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 2 May 12 for review and comment within 30 days (Exhibit G). As of this date, this office has not received a 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 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 also find no evidence which indicates the applicant’s service characterization, which had its basis in his 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 conclude that no basis exists to upgrade his discharge. We considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis. Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought in this application. _________________________________________________________________ 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 Docket Number BC-2011-03284 in Executive Session on 12 Jun 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 16 Aug 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 12 Oct 11. Exhibit D. Letter, SAF/MRBR, dated 28 Oct 11. Exhibit E. Letter, BCMR Medical Consultant, dated 27 Apr 12. Exhibit F. Letter, SAF/MRBC, dated 2 May 12. Exhibit G. Letter, SAF/MRBC, dated 10 May 12. Exhibit H. Letter, Applicant, dated 24 May 12.