RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-01367 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to an honorable discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: His discharge was unjust due to the lack of experience of his defense counsel, the improper advice given to plead guilty, and the interference of his first sergeant. He has been a “model citizen” since his discharge from the Air Force. He needs his discharge upgraded so he can use the GI Bill to pay for his higher education. In support of his request, the applicant provides a personal statement, letters of support and certificates. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 21 Feb 96, the applicant enlisted in the Regular Air Force. Prior to his court-martial the applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go and dereliction of duty. The applicant consulted counsel, and waived his right to demand trial by court-martial. He submitted written matters in his own behalf and made a personal appearance. The commander determined he committed the offense alleged and imposed punishment consisting of reduction to the grade of airman first class, forfeiture of $100.00 pay per month for two months and 30 days extra duty. On 18 Mar 03, the applicant was tried by a General Court- Martial. He pled guilty and was found guilty of use and distribution of cocaine, in violation of Article 112a, UCMJ. He pled not guilty but was found guilty of use and distribution of ecstasy and distribution of marijuana, in violation of Article 112a, UCMJ. He was sentenced to a BCD, confinement for 16 months, and reduction in grade to airman basic. On 23 Apr 03, the convening authority approved the findings and sentence. On 1 Jun 05, the Air Force Court of Criminal Appeals (AFCCA) affirmed the approved findings and sentence. During his appeal, the applicant alleged his civilian and military counsel were ineffective. On 26 Jan 06, the United States Court of Appeals for the Armed Forces denied the applicant’s petition for review. On 28 Feb 06, the applicant’s BCD was ordered to be executed. He served 8 years, 8 months and 18 days of active duty service. On 7 Nov 13, the AFBCMR staff offered the applicant an opportunity to provide information pertaining to his activities since leaving the service (Exhibit E). In response to the request, the applicant states he regrets that his actions discredited his name, command group and Keesler Air Force Base. During his confinement he learned some valuable lessons; he became a better person, father, leader and spiritual individual. He will graduate in Sep 14, with a Bachelor’s degree in Information Systems Cybernet Security from ITT Technical Institute. He is working and attending school full- time, while maintaining a 3.94 grade point average. The applicant’s complete submission, with attachments, is at Exhibit F. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that the applicant alleges no error in the processing of the court-martial conviction against him and his record of trial shows no error in the processing of the court-martial. He does allege ineffective assistance of counsel which is the same argument he put forth to the AFCCA. At his court-martial, the applicant pled guilty to use and distribution of cocaine and was found guilty. The applicant pled not guilty to, but was found guilty of use and distribution of ecstasy and distribution of marijuana. The government provided several eye witnesses to the use and distribution and the applicant’s counsel completed extensive cross-examination of all these witnesses. During findings, the applicant testified under oath denying the use and distribution he pled not guilty to. 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 taking full responsibility for his mistakes and hoping to become stronger in the future. 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 25 Apr 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). The applicant provided a personal statement, character references, certificates, and copies his college transcripts in support of his appeal to have his discharge upgraded based on clemency. While we commend the applicant on his many accomplishments, when considering his overall quality of service, the court-martial conviction which precipitated the discharge, 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 Docket Number BC-2013-01367 in Executive Session on 17 Dec 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 11 Mar 13, w/atchs. Exhibit B. Applicant's Available Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 18 Apr 13. Exhibit D. Letter, SAF/MRBR, dated 25 Apr 13. Exhibit E. Letter, AFBCMR, dated 7 Nov 13. Exhibit F. Letter, Applicant, undated, w/atchs. Panel Chair