RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00653 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to honorable. ________________________________________________________________ APPLICANT CONTENDS THAT: He received a full pardon from a former President of the United States and his discharge should be upgraded. In support of his appeal, the applicant provides a copy of his Certificate of Pardon, dated 9 Oct 75. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 10 Jun 70, the applicant enlisted in the Regular Air Force for a period of four years. On 17 Nov 72, the applicant was arraigned at a Special Court- Martial (SCM) on the following Specifications: CHARGE: Violation of the Uniform Code of Military Justice (UCMJ), Article 86; Specification 1: Did, on or about 26 Jan 72, was Absent Without Leave (AWOL) until on or about 7 Feb 72. Specification 2: Did, on or about 22 Feb 72, went AWOL until on or about 13 Nov 1972. The applicant pleaded and was found guilty of both charges and specifications. On 28 Nov 72, the applicant's sentence was adjudged by a military judge. He was sentenced to a reduction to the grade of airman basic, to perform hard labor for two months, and to be discharged from the service with a BCD, as promulgated in Special Court-Martial Order No. 9. On 23 Feb 73, the Air Force Court of Military Review affirmed the applicant's court-martial conviction and sentence. The applicant declined to appeal the Air Force Court of Military Review’s decision to the United States Court of Military Appeals, making the findings and sentence in his case final and conclusive under the UCMJ. On 8 May 73, the applicant was discharged with service characterized as “Bad Conduct.” He was credited with 2 years, 10 months, and 28 days of active duty service. On 9 Oct 75, the applicant was issued a full presidential pardon. The pardon explicitly provided that the applicant would receive clemency for his punitive discharge received as a result of having violated Article 86 of the UCMJ. ________________________________________________________________ THE AIR FORCE EVALUATION: AFPC/DPSOR recommends denial, stating, in part, that based on the documentation on file in the master personnel records, the discharge to include the character of service was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. DPSOR found no evidence of an error or injustice in the processing of the applicant's discharge, nor did the applicant submit any such evidence. The applicant's request is based on an alleged injustice in the continuing stigma of the BCD on his record and is not based on any error or injustice in the court-martial process. The applicant's record shows that he was afforded all of the procedural rights offered by the court-martial and appellate process. Prior to accepting his guilty plea, as evidenced by the record of trial, the military judge ensured the applicant understood the meaning and effects of his plea and the maximum punishment that could be imposed if his guilty plea was accepted by the court. The complete DPSOR evaluation is at Exhibit C. AFLOA/JAJM recommends approval, stating, in part, that upgrading the applicant’s BCD is appropriate based on the merits of the application. JAJM opines that although the application is untimely, justice warrants upgrading the applicant's discharge characterization to an honorable discharge. A former President of the United States pardoned the applicant for his conviction. This pardon explicitly provides clemency for the applicant's punitive discharge. As such, the applicant's discharge characterization should be upgraded to honorable. The complete JAJM evaluation is at Exhibit D. ________________________________________________________________ APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 28 Jun 13 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit E). ________________________________________________________________ THE ADDITIONAL AIR FORCE EVALUATION AFLOA/JAJM recommends denial. Based on a subsequent review of the applicant’s case and the Presidential Proclamation 4313, JAJM now recommends the Board not grant the request based on an error or injustice with the court-martial process or the fact that the applicant received a full pardon in furtherance of the Presidential Proclamation. JAJM notes that, on 9 Oct 75, the applicant was issued a full presidential pardon in furtherance of Presidential Proclamation 4313 dated 16 Sept 74. This proclamation served to return Vietnam era draft evaders and military deserters "to their country, their communities, and their families, upon their agreement to a period of alternative service in the national interest, together with an acknowledgment of their allegiance to the country and its Constitution." As part of this program, the clemency discharge was created. "The clemency discharge is a neutral discharge, neither honorable nor less than honorable. It does not effect a change in the characterization of the individual's military service as having been under other than honorable condition, nor does it serves to change, seal, erase or in any way modify the individual's past military record. Therefore, if the underlying discharge was issued as a result of a general court-martial, the issuance of a Clemency Discharge does not subject the underlying characterization to review [by the Board] under 10 U.S.C. 1553." 32 C.F.R. § 724.l 12(b). On 15 Mar 76, the applicant was issued a "clemency discharge" in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation 4313. In accordance with 32 C.F.R. § 724.l 12(b), the Board should not upgrade the applicant's discharge by replacing the clemency discharge with an honorable discharge. Therefore, we reverse our original recommendation. The complete JAJM evaluation is at Exhibit F. ________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 9 Jan 14 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit G). ________________________________________________________________ THE ADDITIONAL AIR FORCE EVALUATION The Air Force Reviews Board’s Agency (AFRBA) Legal Advisor notes that during the legal review before final action on the applicant's case, it was discovered that the AFLOA/JAJM advisory did not correctly apply Presidential Proclamation 4313, "Announcing a Program for the Return of Vietnam Era Draft Evaders and Military Deserters," 16 Sep 74, through which the applicant's Pardon was granted. This resulted in an AFLOA/JAJM recommendation to take action outside the scope and limits of the Executive Order and, arguably, beyond the authority of AFBCMR. To correct the error, we subsequently requested AFLOA/JAJM reconsider their original advisory in light of the full text of the Executive Order. The AFLOA/JAJM's revised advisory, dated 7 Jan 14 reversed their original recommendation. With respect to the present case, the AFRBA Legal Advisor noted that a Record of Proceeding from an AFBCMR case decided on 14 Aug 13 (Docket Number BC-2012-04136), addresses a similar request for an honorable service characterization, also based on a Pardon granted in accordance with Presidential Proclamation 4313. In that case, the applicant's request to upgrade his service characterization was denied based on the limits of the Executive Order, but only after he was afforded the opportunity to provide information that might have supported an independent basis for upgrade, within the AFBCMR's authority. The complete AFRBA Legal Advisor evaluation, with attachments, is at Exhibit H. ________________________________________________________________ APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 19 Feb 14 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit I). ________________________________________________________________ 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 find no evidence that indicates the applicant’s service characterization, which had its basis in his conviction by special 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). In addition, we note the applicant has provided a copy of a certificate that indicates that he was granted a Presidential pardon for his absence offenses; however, we also note that this pardon was granted to the applicant by virtue of a comprehensive program for the return of Vietnam era draft evaders and military deserters that also included a Presidential Clemency Board. While the applicant was granted clemency for his absence offenses under this program, the tenets of this program specifically preclude this form of clemency from being used as a basis to obtain benefits from the Department of Veterans Affairs (DVA). Initially, based on an evaluation (original) from JAJM, we were inclined to grant the applicant’s request; however, subsequently JAJM has reversed their recommendation. Therefore, in view of these facts, we are not inclined to upgrade the applicant’s discharge on the basis of his receipt of a Presidential pardon, which is limited only to his absence offences, when doing so would bestow benefits to the applicant that are specifically precluded under the clemency program. In the interest of justice, we considered upgrading the discharge on the basis of clemency; however, based on the lack of post service documentation since his discharge, we do not find the evidence presented is sufficient to compel us 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 upgrade the applicant’s BCD. ________________________________________________________________ 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-2013-00653 in Executive Session on 19 Nov 13 and 12 May 14, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 1 Feb 13, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 30 Apr 13. Exhibit D. Letter, AFLOA/JAJM, dated 19 Jun 13. Exhibit E. Letter, SAF/MRBR, dated 28 Jun 13. Exhibit F. Letter, AFLOA/JAJM, dated 7 Jan 14. Exhibit G. Letter, SAF/MRBC, dated 9 Jan 14. Exhibit H. Letter, AFRBA Legal Advisor, 3 Feb 14, w/atchs. Exhibit I. Letter, SAF/MRBC, dated 19 Feb 14. 1 2