RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04121 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His Under Other Than Honorable Conditions (UOTHC) discharge be upgraded to Honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: His record is unjust because his youthful indiscretions were due to Post-Traumatic Stress Disorder (PTSD) from working with live munitions. He was an exemplary Airman as his performance report shows. His attention to detail saved countless lives. His discharge is under-graded, preventing him from qualifying for civilian housing. He is now a homeless vet. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant initially entered the Air Force on 4 Jan 77. On 10 Apr 79, the applicant was furnished a UOTHC discharge after completing seven months in confinement for his 17 May 78 conviction in a general court-martial. The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility (OPR) which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. The applicant primarily fulfilled duties as a munitions maintenance specialist. On 17 May 78, the applicant, then an airman first class, was found guilty of one charge and two specifications of larceny of property totaling approximately $200 in violation of Article 121, Uniform Code of Military Justice (UCJM); one charge and two specifications of making false checks totaling $100 in violation of Article 123, UCMJ; and one charge and one specification of housebreaking into the base Officers Wives Club in violation of Article 130, UCMJ. The applicant had been charged with 14 additional specifications, but the defense successfully moved to dismiss those specifications after arraignment. The applicant was sentenced to a bad conduct discharge (BCD), confinement for seven months, forfeiture of $200 per month for seven months, and a reduction in grade to E-1. On 26 Jul 78, the convening authority approved the sentence. On 14 Nov 78, the Air Force Court of Military Review approved and affirmed the findings and sentence. In Feb 79, the United States Court of Military Appeals denied the applicant’s request for review, thus making his case final and conclusive under the UCMJ. On 6 Apr 79, the discharge was executed. Under 10 U.S.C. § 1552(f), 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 specific allegation of injustice, nor does he allege any error in the processing of the general court- martial conviction against him and his record of trial shows no error in the processing of the court-martial. The court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. Rule for Courts-Martial 1003 (b)(8)(C) states that a bad conduct discharge “is designed as punishment for bad- conduct.” It also indicates that a BCD is more than merely a service characterization; it is a punishment for the crimes the applicant committed while a member of the armed forces. A BCD was and continues to be part of a proper sentence and properly characterizes his service. Clemency in this case would be unfair to those who honorably served their country while in uniform. 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: On 1 Apr 13, a copy of the Air Force advisory and a request for post-service information 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 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 error or injustice. The evidence of record indicates the applicant was sentenced by a court- martial to a bad conduct discharge (BCD); however, it appears he was ultimately furnished an administrative discharge with an under other than honorable conditions (UOTHC) character of service. While the applicant contends his UOTHC discharge was unjust and argues that his indiscretions were the result of his post-traumatic stress disorder (PTSD), other than his own uncorroborated assertions, he has presented no evidence whatsoever that would cause us to question the underlying basis for his UOTHC discharge or convince us that it was not somehow inconsistent with the substantive provisions of the governing directive, there was an abuse of discretionary authority, or that he was denied rights to which he was entitled. The applicant has provided no evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. In the interest of justice, we considered upgrading the discharge on the basis of clemency; however, in the absence of any documentation describing the applicant’s activities since leaving the service, we find no basis to recommend granting the relief sought on that basis. In view of the foregoing, and in the absence of evidence to the contrary, we conclude that no basis exists to grant the relief sought in 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 our 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-2012-04121 in Executive Session on 23 May 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 29 Aug 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 5 Dec 12. Exhibit D. Letter, AFBCMR, dated 1 Apr 13, w/atch.