RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05158 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to general (under honorable conditions) or honorable. _________________________________________________________________ APPLICANT CONTENDS THAT: He was a dependable and professional noncommissioned officer (NCO). When he made the mistakes that caused him to receive a BCD he was suffering from extensive mental and physical health conditions. He was also going through an extremely stressful family matter which resulted in him having a perforated ulcer. His spouse took their daughter and he was unable to see her while stationed overseas in Korea. Due to these circumstances, he was depressed and self-medicated himself with alcohol. He made choices that under normal conditions he would have never considered. In addition, he was informed that his best friend of 25 years died due to a blood clot in his lungs, which added to his feelings of hopelessness and depression. Despite the trials and tribulations, he has turned his life around and has become a responsible, productive and upstanding citizen in his community. He is employed; was promoted from electrician to Quality Assurance Inspector and is a certified tax associate with H and R Block. In support of his appeal, the applicant provides copies of numerous character statements, certificates, awards, and various other documentation in support of his request. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 17 Apr 84, the applicant entered the Regular Air Force. On or about 4 May 85, the applicant operated a vehicle while drunk. For this misconduct, he received reduction to the grade of airman basic and forfeiture of $125.00 pay per month for two months. The portion of punishment which extended to the reduction in grade was suspended until 27 Nov 85, at which time it was to be remitted without further action unless sooner vacated. Between on or about 15 Aug 92 and on or about 28 Aug 92, the applicant with the intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully uttered to the Merchants Community Bank three checks upon the Tyndall Federal Credit Union in the total amount of $1,500.00. On or about 26 Aug 92, the applicant with the intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully uttered to the Challenger NCO Open Mess, a check upon the Tyndall Federal Credit Union in the total amount of $200.00. For the above aforementioned misconduct, the applicant received reduction to the grade of senior airman, forfeiture of $200.00 pay per month for two months and 45 days extra duty. The portion of punishment which extended to the forfeiture was suspended until 22 Apr 93, at which time it was to be remitted without further action unless sooner vacated. On 19 Jun 98, the applicant was tried and convicted by a general court-martial for two specifications of violation of a lawful general regulation, in violation of Article 92, Uniform Code of Military Justice (UCMJ) and one specification of issuing worthless checks in the total amount of $5,012.87 in violation of Article 123a, UCMJ. He was sentenced to a BCD, confinement for six months, reduction in grade to airman basic (E-1), and forfeiture of $500.00 pay per month for six months. On 28 Jul 98, the convening authority approved the findings and sentence that consisted of confinement for six months, reduction to the grade of airman basic and a BCD. The convening authority deferred the adjudged and required forfeitures of pay and allowances from 23 Jun 98 until 28 Jul 98 and waived the forfeiture of $500.00 pay per month for a period of six months or release from confinement, whichever was sooner. On 29 Oct 98, the applicant was tried and convicted by a second court-martial for one specification of wrongful use of cocaine, in violation of Article 112a, UCMJ. He was sentenced to a BCD, confinement for seven months and forfeiture of $400.00 pay per month for seven months. On 4 Dec 98, the convening authority approved the findings and sentence as to the BCD and confinement for seven months. The convening authority waived the forfeitures of pay and allowances. On 4 Jun 99, the Air Force Court of Criminal Appeals (AFCCA) approved the findings of guilty and the sentence for the second court-martial. On 7 Oct 99, the AFCCA approved and affirmed the findings and sentence for the first court-martial. In addition, the United States Court of Military Appeals denied the applicant’s request for review of his second court-martial, thus making the case final and conclusive under the UCMJ. As a result, his BCD was ordered to be executed on 18 Nov 99. On 2 Mar 00, the United States Court of Military Appeals denied the applicant’s request for review of his first court-martial, thus making the case final and conclusive under the UCMJ. Because the BCD from his second court-martial had already been executed, the convening authority did not execute the BCD given in the first court-martial. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial based on the application being untimely and also on its merits. JAJM states that the applicant offers no allegation of injustice. He simply requests an upgrade to his BCD based on the circumstances at the time he was court-martialed along with the positive progress he has made since his discharge. The applicant alleges no error in the processing of the court-martial convictions against him and his record of trial shows no error in the processing of the courts- martial. During both courts-martial, he pled guilty to the charges and specifications. Both times he was represented by military counsel and had the opportunity to demand the government prove the offenses against him. The court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The applicant made an unsworn statement on his behalf asking for leniency for his daughter, mother and sisters who all suffered because of his mistakes. A BCD was and continues to be part of a proper sentence and properly characterizes his service. Granting clemency in this case, in the form of upgrading his discharge characterization, would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ 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 crimes, such as the applicant while on active duty. The complete 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 11 Jan 13, for review and comment within 30 days (Exhibit D). 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), our actions 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 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 considered upgrading the discharge on the basis of clemency; however, after considering the applicant’s overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offense of which convicted, and the documentation pertaining to his post-service activity we cannot conclude clemency is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. _________________________________________________________________ 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-2012-05158 in Executive Session on 15 Aug 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 15 Oct 12, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 4 Jan 13. Exhibit D. Letter, SAF/MRBR, dated 11 Jan 13. Panel Chair