RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-04547 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to an honorable discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: At the time of his discharge he was young and naïve and did not know how to defend himself. He was unjustly accused for a crime he did not commit and did not have adequate counsel. Since his discharge he has not been any trouble and has been employed by the government. In support of his request, the applicant provides a copy of his DD Form 293, Application for Review of Discharge from the Armed Forces of the United States. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 7 Oct 86, the applicant commenced his enlistment in the Regular Air Force. On 5 Sep 90, the applicant was tried and convicted by a special court-martial for five specifications of larceny and wrongful appropriation in violation of Article 121, Uniform Code of Military Justice (UCMJ). The applicant pled and was found guilty and sentenced to a BCD, confinement for three months, and a reduction to airman basic (AB). The applicant’s sentence was adjudged on 5 Sep 90. The Air Force Court of Military Review affirmed the findings and sentence. He appealed to the United States Court of Military Appeals. The court denied his appeal. His bad conduct discharge was ordered to be executed on 6 May 91. The applicant was furnished a BCD on 24 May 91. On 8 May 13, a request for post-service information was forwarded to the applicant for response within 30 days (Exhibit C). As of this date, no response has been received by this office. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. There was no evidence provided or located in records showing an error in the processing of the special court-martial; nor does the applicant contend there was an error in the processing of his special court-martial or his conviction. Prior to charges being preferred, the applicant admitted to stealing the monies to the Security Forces. The applicant pled guilty at trial to the charge and specifications. The applicant was represented by military counsel and had the opportunity to demand the government prove he committed the offenses against him. Prior to accepting the applicant’s guilty plea, the judge ensured he understood the meaning and effect of his plea and the maximum punishment that could be imposed if his plea was accepted by the court. In cases which include guilty pleas, the military judge ensures the accused understands the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea is accepted by the court. The military judge explains the elements and definitions of the offenses to which the accused plead guilty; and has the accused explain in his own words why he believes he is guilty. Upon the court's acceptance of the guilty plea, it will receive evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The Rules for Courts-Martial states that a bad conduct discharge "is designed as punishment for bad-conduct." It also indicates that a bad conduct discharge is more than merely a service characterization; it is a punishment for the crimes the individual committed while a member of the armed forces. The applicant's sentence was within the legal limits and was an appropriate punishment for the offenses committed. A bad conduct discharge was and continues to be part of a proper sentence and properly characterizes his service. While clemency may be granted under 10 U.S.C § 1552(f)(2), clemency is not warranted in this case. The applicant’s sentence to a BCD, reduction in rank, and confinement for four months was well within the legal limits and was an appropriate punishment for the offense committed. Congress’ intent in setting up the Veteran’s Benefits Program was to express thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy actions, and suffering financial hardship. All rights of a veteran under the laws administered by the Secretary of the Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. The applicant’s service time was punctuated by cocaine use, which should not be rewarded by the granting of veteran’s benefits. Upgrading the applicant’s BCD is not appropriate. 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 10 Dec 12, for review and comment within 30 days. As of this date, no response has been received by this office. ________________________________________________________________ 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. 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 view of the above, 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-2012-04547 in Executive Session on 25 Jun 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 19 Sep 12, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 26 Nov 12. Exhibit D. Letter, SAF/MRBR, dated 10 Dec 12. Exhibit E. Letter, AFBCMR, dated 8 May 13, w/atch.