RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-02051 COUNSEL: HEARING DESIRED: YES APPLICANT REQUESTS THAT: His court-martial conviction be set aside and his bad conduct discharge be upgraded to honorable. APPLICANT CONTENDS THAT: The only reason he testified at his court-martial, was to show the members that the Air Force entrapped him. On the night in question, a female service member came to his dorm room with her uncle, who turned out to be an undercover Air Force Special Agent. His defense counsel failed to request the entrapment instruction. There was ample evidence to show the suggestion/inducement originated with the “uncle” and he had no predisposition to commit the offense. Though he raised this issue in his testimony, his Air Force attorney failed in his duty to request the entrapment instruction. Even if not requested, the Military Judge had a duty, sue ponte, to give the instruction. This error also was not raised by his appellate defense counsel. It was only discovered after the applicant hired his current attorney to review the case. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 4 Mar 93, the applicant entered the Regular Air Force. On 22 Apr 94, he was tried by court-martial and found guilty of one charge and one specification in violation of Article 80 of the Uniform code of Military Justice (UCMJ) for wrongfully attempting to possess lysergic acid diethylamide (LSD). He was sentenced to a bad conduct discharge, confinement for six months, forfeiture of $300.00 per month for six months, and reduction to the grade of airman basic. On 9 Jun 94, the Staff Judge Advocate found the evidence legally sufficient to support the guilty findings and recommended approval of the adjudged sentence. On 15 Jul 94, the convening authority approved the findings and sentence as adjudged. On 18 Jul 96, General Court-Martial Order No. 230 set forth his bad conduct discharge, confinement for six months, forfeiture of $300.00 per month for six months and reduction to airman basic as adjudged on 22 Apr 94. On 1 Aug 96, the applicant received a bad conduct discharge and was credited with 2 years, 11 months and 16 days of active service. AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice. The punishment adjudged by a panel of members and approved by the convening authority was within the range of permissible punishments. The applicant was afforded all his appellate rights. In accordance with 10 USC 1552(f), the Board has no authority to overturn the court-martial conviction but may only on the basis of clemency, correct the actions taken by the reviewing authorities, i.e., the sentence. The applicant did not submit anything in clemency, but rather argues that an entrapment defense should have been raised at his trial. The applicant’s arguments are not proper arguments for a decision by this board, as this board cannot overturn convictions, they can only grant relief in the form of clemency. The arguments made by the applicant were appropriate arguments for the appellate courts. The applicant had appellate defense counsel and the courts fully reviewed the applicant’s case. 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 20 Jan 15 for review and comment within 30 days (Exhibit D). 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 timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. In the interest of justice, we considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to overcome the misconduct that formed the basis of the discharge. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief. 4. The applicant’s case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. 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 documentary evidence pertaining AFBCMR Docket Number BC-2014-02051 was considered: Exhibit A. DD Form 149, dated 12 May 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Memorandum, AFLOA/JAJM, dated 14 Jan 15. Exhibit D. Letter, SAF/MRBR, dated 20 Jan 15.