RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS. IN THE MATTER OF: DOCKET NUMBER: BC-2015-02841 COUNSEL: NONE HEARING DESIRED: YES APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded. APPLICANT CONTENDS THAT: Approximately 25 years ago, after almost 14 years of honorable service, an uncharacteristic error in judgment sent him to a General Courts Martial. He received a BCD, four months confinement, reduction in rank, and financial penalties. All these actions were a result of a one-time use of cocaine. The cocaine was given to him one evening and he used it and has never possessed or been involved with any kind of drugs (before or since this incident). The urinalysis indicated less than .0027 of a gram. He feels the punishment was excessively harsh and have since learned that this punishment was way outside the norms in similar situations. While confined at Mather AFB, CA, he earned “minimum security” and was released from confinement (unsupervised and unescorted) for work detail throughout the base. Prior to these events, he was a couple of classes short of completing his Master's Degree. Shortly after his release, he received a Master of Science degree in Human Resource Management from Chapman University, Orange, CA. He is self-employed and has been since 1990. He has lived on the same street since Apr 88 and purchased the house across the street in 1995. He considers himself fortunate to live and work on the Monterey Peninsula. He is asking to have his discharge upgraded; due to being barred from voting, jury duty, various veteran organizations and other amenities available to veterans. Expunging this discharge will help him with employment opportunities, Department of Veterans Affairs (DVA) benefits, and many other situations. Further, it would validate his 14 years of service. Lastly, and most paramount, he would be able to call himself a “veteran in good standing.” The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: Prior to the events under review, on 15 Jul 75, the applicant initially entered active duty in the Regular Air Force. On 11 May 90, the applicant was tried and convicted at a general court-martial. He pled guilty to and was found guilty of wrongfully using cocaine, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). The court-martial sentenced the applicant to be discharged from the service with a BCD; forfeiture of $250.00 of pay per month for four months, and to be reduced from the grade of E-5 to E-1. On 3 Jul 90, the convening authority approved the findings and adjudged sentence of the court-martial, and with the exception of the bad conduct discharge, ordered the sentence be executed. Pursuant to Article 71(c), UCMJ, the record of trial was then forwarded to the Air Force Court of Criminal Appeals for review. All cases resulting in dismissal, dishonorable discharge, or bad conduct discharge must be reviewed by the Court for legal sufficiency. At the conclusion of this mandatory appellate review, the court-martial result was found to be legally sufficient. Subsequently, on 14 August 1991, the bad conduct discharge was ordered executed. On 12 Dec 94, the applicant was discharged, with a reason for separation of court-martial, and a bad conduct character of service. He was credited with over 19 year of active duty service, excluding lost time from 18 May 90 to 20 Aug 90 and non- paid status from 23 Aug 90 to 12 Dec 94. On 13 Jul 15, a copy of the Clemency Information Bulletin was forwarded to the applicant for review and comment within 30 days (Exhibit C). The applicant provided an additional statement, noting, that he had contacted the FBI to inquire about and begin a background investigation and explained the reasons for the request. He was asked if he had been arrested or fingerprinted since the incident and he replied that he had not, so he was told that it was not necessary. In reference to the information bulletin, he reiterated his original contentions and explained his record of performance and the events leading up to his conviction. He met and married an Air Force member in 1991 and they have remained married going on 25 years. She has been employed for the last eight years as the Church Secretary, Marina, CA. He has lived on the same street since Apr 88. Shortly after being assigned to the Presidio of Monterey, he began caddying at The Pebble Beach Gold Resorts (Pebble Beach, Spyglass Hill, Spanish Bay, and Old Del Monte Golf Courses) on the weekends for some extra money. After four months of incarceration at Mather AFB, he returned home and was fortunate enough to continue caddying on a full-time basis and has done so ever since, for a total of 28 years. He has caddied for, and walk around with, Vice Presidents, Congressman, Governors, Senators, professional athletes, actors, producers, writers, foreign dignitaries, active duty and retired military. About the misconduct, he was offered a very small amount of cocaine from a member of the American Legion, Post 41, in the parking lot where his motor home was parked. Without thinking, he ingested it, an uncharacteristic error in judgment. The next day, Monday, he was instructed to give a urinalysis. This was his second urinalysis in 14 years; he was set up and come to find out this person worked for CID. He has never used drugs and don't use drugs. The applicant’s complete response is at Exhibit D. AIR FORCE EVALUATION: AFLOA/JAJM recommends the applicant’s request be denied as untimely and inconsistent with the legally sufficient result of his general court-martial. JAJM notes the applicant was tried by general court-martial in May 90 for cocaine use, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). This offense carried a maximum possible punishment of a dishonorable discharge, total forfeitures of pay, reduction to E-1, and five years confinement. The applicant was represented by military defense counsel at trial. He pled guilty to the offense and was sentenced to a bad conduct discharge, forfeiture of $250 pay for four months, a reduction in grade from E-5 to E-1, and four months of confinement. The punishment adjudged at trial and approved by the convening authority was within the range of permissible punishments. There is no evidence or claim that the applicant was not afforded all his procedural due process rights at trial or on appeal. In accordance with 10 USC 1552(f), the Board has no authority to overturn the court-marital conviction, but may, on the basis of clemency, adjust the sentence. Despite the applicant’s apparent personal and professional achievements since his court-martial conviction, there is no new evidence that would negate the crime that the applicant pled guilty to committing in 1990, and no basis to question the sentence that was imposed. A holistic review of the applicant’s personnel records would have been performed before the sentence was adjudged and then again before it was approved. In addition, as a sentencing authority views each case individually based upon the aggravating and mitigating factors present, comparisons to other “similar situations” have little relevance to a review of the fairness of the court-martial proceedings which lead to the applicant’s bad conduct discharge. The Air Force Court of Criminal Appeals found that the punitive discharge was supported by the record of trial and the applicant has not presented any additional matters which tend to undermine that finding. A complete copy of the JAJM evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 12 Jan 16 for review and comment within 30 days (Exhibit F). 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 Legal Operations Agency and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice. In addition, we commend the applicant on his accomplishments since leaving the service, it appears that he has overcome the circumstances which led to his separation and has done very well. However, considering his overall record of service and the seriousness of the offenses which led to his bad conduct discharge, we are not persuaded that an upgrade of the characterization of his discharge is warranted. 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 members of the Board considered AFBCMR Docket Number BC-2015-02841 in Executive Session on 15 Mar 2016 under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, undated, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, SAF/MRBR, dated 13 Jul 15. Exhibit D. Letter, Applicant, undated. Exhibit E. Letter, AFLOA/JAJM, dated 5 Jan 16. Exhibit F. Letter, AFBCMR, dated 12 Jan 16. 3