RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04859 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to general (under honorable conditions). ________________________________________________________________ APPLICANT CONTENDS THAT: He was guilty of making a bad decision as a young airman; however, while disciplinary actions were in order, rehabilitation should have been made available prior to his discharge. His bad decision was a one-time incident. In support of his appeal, the applicant provides a certificate of military service and a certificate for the successful completion of a course presented by the Alcohol and Drug Residential Treatment Team. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant served in the military from 19 Feb 81 to 13 Aug 87. On 14 Sep 86, he was tried at special court-martial for one specification of wrongfully using cocaine in violation of Article 112(a) Uniform Code of Military Justice (UCMJ) and one specification of absenting himself from duty without authority, in violation of Article 86, UCMJ. On 16 Sep 86, he was found guilty of wrongfully using cocaine but not guilty of absenting himself without authority. He was sentenced to a BCD, confinement for two months, forfeiture of $250.00 per month for two months, and a reduction in grade from sergeant (E-4) to airman basic (E-1). On 3 Mar 87, the Air Force Court of Military Review approved and affirmed the findings and sentence. The applicant declined to petition the US Court of Military Appeals for a review of the decision of the Court of Military Review, making the findings and sentence in his case final and conclusive under the UCMJ. His BCD was executed on 30 Jun 87. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM notes the untimeliness of the application and recommends denial. JAJM further notes the applicant offered no allegation of injustice; he simply wants his BCD to be upgraded due to his offense being a one-time mistake and that he was not offered any rehabilitation opportunities. The court adjudged guilt as to the wrongful use of cocaine, beyond a reasonable doubt, based on the evidence provided by the prosecution. A forensic toxicologist testified for the prosecution that the positive urinalysis reflected the applicant did use cocaine. A BCD is designed as punishment for bad conduct. A BCD is more than just a service characterization; it is a punishment for the crimes the applicant committed while a member of the armed forces. His sentence was well within the legal limits and was an appropriate punishment for the offense committed. Clemency, in this case, would be unfair to those individuals who honorably served their country while in uniform. The applicant had an opportunity to receive clemency from the convening authority after his court-martial; however, in his request for clemency, the applicant continued to deny ever using cocaine. Upgrading his character of service based on clemency would grant the applicant access to veteran’s benefits originally intended by Congress as thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy action and suffering financial hardships. It would be offensive 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. A complete copy of the AFLOA/JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 24 Feb 12 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). ________________________________________________________________ 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 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, the seriousness of the offenses to which convicted, and the documentation pertaining to the applicant’s post-service activities. Based on the evidence of record, we cannot conclude that clemency is warranted in this case. 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-2011-04859 in Executive Session on 19 September 12, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-04859 was considered: Exhibit A. DD Form 149, dated 24 Nov 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 6 Feb 12. Exhibit D. Letter, SAF/MRBR, dated 24 Feb 12.