RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01237 COUNSEL: NONE XXXXXXX HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Bad Conduct Discharge (BCD) be upgraded. 2. His conviction be removed from his record and any databases that would report outside of the military. ________________________________________________________________ APPLICANT CONTENDS THAT: He has changed his life over the last 13 years. His conviction and sentence has served its purpose and does not need to exist any longer. He would like to further his education and contribute to society in a positive manner. In support of his request, the applicant provides copies of AF Form 1359, Report of Result of Trial, academic record, and a letter to his senator. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 25 Feb 2001, the applicant entered the Regular Air Force. On 12 Mar 2003, he was separated with a BCD. He served 1 year, 2 months and 28 days of active service. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. On 18 Nov 2013, a request for post-service information was forwarded to the applicant for review and comment. In an undated letter the applicant states that he has had numerous positive accomplishments after his discharge from the Air Force. During his very short time in the military he got into trouble not for financial profit, but to gain acceptance. His military records reflect that he was a motivated and honest person who was liked by his peers. He would like an upgrade in his discharge to show his friends and family that he has been a productive member of society despite his choices in early adulthood. He has been honest about his discharge which has led to many career limitations that otherwise would allow him to earn a decent wage. He served his sentence years ago and has carried “this ball and chain” for over a decade. He has learned his lesson and an upgrade in discharge would allow him to prove to others that his post service efforts mean something. In further support of his request the applicant includes a résumé of his post-service accomplishments. His entire response is at Exhibit G. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states upgrading the applicant’s BCD is not appropriate and recommends the Board deny the request as untimely or on the merits. JAJM states that ordinarily, an applicant must file an application within three years after an error or injustice is discovered or, with due diligence, should have been discovered. His court-martial took place in 2001 and the final action on his discharge was taken in 2003. The application is untimely. On 11 Aug 2001, the applicant, then an Airman (E-2), pled guilty and was found guilty of diverse use of ecstasy and distribution of ecstasy to several airmen, in violation of Article 112a, Uniform Code of Military Justice (UCMJ); and attempted distribution of ecstasy, in violation of Article 80, UCMJ. The applicant was sentenced to a BCD, confinement for one year, forfeiture of all pay and allowances and a reduction to the grade of E-1. On 21 Dec 2001, the convening authority approved the findings and sentence. The applicant appealed to the Air Force Court of Criminal Appeals (COMA) who affirmed the approved findings and sentence. On 17 Dec 2002, the applicant did not petition the United States Court of Appeals for the Armed Forces for review. The applicant's BCD was ordered to be executed on 6 Mar 2003. The applicant requests an upgrade to his BCD and removal of his conviction from his records and databases based on the fact that his drug conviction has prevented him from obtaining the education and jobs that he wants. The applicant alleges no injustice and no error in the processing of the court-martial conviction against him. His record of trial shows no error in the processing of his court-martial. At his court-martial, the applicant initially pled not guilty to all charges, but after two days of prosecution witness testimony and additional evidence, the applicant changed his plea and pled guilty to use and distribution of ecstasy. He was subsequently found guilty. His sentence to a BCD, confinement for one year, forfeiture of all pay and allowances, and a reduction to the grade of E-1, was well within legal limits. This discharge characterization was and continues to be part of a proper sentence and properly characterizes his service. Clemency in this case 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’s while on active duty. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: While JAJM states his application is untimely, the changes in his life over the last 13 years show a greater impact, than if he filed within three 3 years. To continue to feel the effects of his punishment is excessive. JAJM’s statement that he wants his charges removed so that he can do whatever he wants is not true. He stated that his intentions were to pursue school and be allowed to further his education or contribute to society in a positive manner that allows him to make his parents proud. He has no interest in collecting veteran’s benefits. He volunteered to serve his country and he never expected to be given anything in return for his service. He paid his own way through school and does not rely on the government for any assistance. He has attained two massage therapy state licenses, became a registered nurse as well as achieved numerous other accomplishments. He asks the reader to make their own informed decision. His complete response is at Exhibit E. ________________________________________________________________ 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 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 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 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 offenses of which convicted, and noting the lack of documentation pertaining to his post-service activities, we cannot conclude that 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 AFBCMR BC-2013- 01237 in Executive Session on 9 Jan 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 24 Feb 2013, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR, dated 18 Nov 2013. Exhibit D. Letter, AFLOA/JAJM, dated 3 May 2013. Exhibit E. Letter, SAF/MRBR, dated 10 May 2013. Exhibit F. Letter, Applicant, dated 20 May 2013. 4 5