RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03029

 						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded.  

APPLICANT CONTENDS THAT:

He has been working on improving his mental state and his alcoholism.  He is living a clean and sober life.  He has been improving himself and receiving help.  

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

On 25 August 1983, the applicant entered the Regular Air Force.

According to the Chronological Record of Medical Care dated 12 November 1987, the applicant was seen in the mental health clinic for a drug and alcohol rehabilitation meeting.  The applicant was entered into a local phase of rehabilitation and ordered to abstain from all mood altering substances.  

Per General Court-Martial Order, Number 120, dated 26 January 1989, the applicant was charged, pled and found guilty of the following: Charge 1, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), for wrongful use of cocaine between and on or about 1 July 1988 and on or about 27 July 1988.  Charge 2, in violation of Article 86, UCMJ, for being absent from his unit without authority from and on or about 6 October 1988 until apprehended on or about 9 October 1988.  The sentence adjudged on 12 December 1988 was reduction to the grade of Airman Basic (AB, E-1), confinement for eight months and a BCD.  

General Court-Martial Order, Number 85, dated 9 January 1990 reflects the applicant’s sentence adjudged on 12 December 1988 to a BCD, confinement for eight months and reduction to the grade of AB, as promulgated in General Court-Martial Order, Number 120, dated 26 January 1989 was affirmed.    

On 23 January 1990, the applicant was discharged with a BCD and a narrative reason for separation of “Conviction by Court-Martial (Other than Desertion).”  He served 5 years, 7 months and 23 days of active duty service.  

In his application, he provides a character reference letter dated 15 November 2014 from the Veterans Administration (VA) Regional Benefit Office which states she has known the applicant for 10 years.  During this time, she has watched him struggle with his demons.  For a while he was not successful; however, he has paid his debt and has renewed his determination to make a better life for himself.  His work ethic is commendable and he is a valued team member at his place of employment.  He is worthy of an upgrade of his discharge to a general discharge.  Upgrading his discharge will allow him access to health care benefits which will assist him in the ongoing process of becoming a solid citizen.

On 17 November 2015, the AFBCMR provided the applicant with an opportunity to provide information pertaining to his activities since leaving the service (Exhibit C).  As of this date, this office has not received a response.  

The remaining relevant facts pertaining to this application are contained in the memorandums prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits D and F.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  There is no evidence or allegations of error or injustice that undermines the sentence adjudged at his court-martial and approved on appeal.  Additionally, the application is untimely.    

The applicant was tried by general court-martial in December 1988 for wrongful cocaine use and being absent from duty without authority for four days, in violation of Articles 112a and 86, UCMJ, respectively.  He was represented by military defense counsel at trial.  The maximum allowable punishment for the charges and specifications at trial was five and a half years confinement, forfeiture of all pay and allowances, reduction to the grade of AB and a dishonorable discharge.  The applicant pled guilty to the charges and specifications as alleged and was sentenced to eight months of confinement, forfeiture of all pay and allowances, reduction to the grade of AB and a BCD.   It was with a full picture of the applicant’s duty history, the aggravating circumstances of the crime and any extenuation/mitigation evidence provided by the applicant that the court-martial fashioned an appropriate sentence.  The applicant’s punishment was within the permissible punishments prescribed for the offenses to which he pled guilty.  The applicant also had one previous Nonjudicial Punishment (NJP) that was issued by his commander pursuant to Article 15, UCMJ.  His NJP was issued in October 1987 for dereliction of duty.   

Pursuant to Article 66(b)(1) and 71(c), UCMJ, the record of trial was forwarded to the Air Force’s Criminal Appeals Court for review.  All cases resulting in dismissal, dishonorable discharge or a BCD must be reviewed by the appellate court for legal sufficiency before final action can be take on the case.  At the conclusion of the mandatory appellative review, the court-martial was found to be legally sufficient.  Subsequently, on 9 January 1990, the BCD was ordered executed and the applicant was separated on 23 January 1990.  While it is laudable that he has gotten sober and reformed his lifestyle since the time of conviction, he has not submitted any new evidence or information which tends to cast doubt on the outcome of his trial.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to the applicant on 19 February 2016 for review and comment within 30 days (Exhibit E).  As of this date, no response has been received by this office.

ADDITIONAL AIR FORCE EVALUATION:

The BCMR Psychiatric Consultant finds insufficient evidence to warrant the desired change of the record and finds no error or injustice.  The Board may consider an upgrade of the discharge based solely on clemency.  

The applicant has not filed a timely petition.  It has been over 20 years since his discharge and there is no valid reason mentioned as to why he did not submit a petition within three years of discharge or discovery.  Due to the age of this case, the file contains very limited medical records.  It is evident he enjoyed a successful military career until 1987, secondary to what appears to be alcohol abuse.  Per mental health notes, the applicant successfully completed the substance abuse program in 1988; however, unfortunately, could not maintain sobriety and was court-martialed in 1989 for cocaine use and unauthorized absence.  The record fails to reveal the reasons underlying his development and exacerbation of substance abuse issues.  Nonetheless, given the nature of the disease, it was most likely multifactorial in nature and combined the influences of genetic vulnerabilities, psychosocial factors and personality characteristics.  The psychiatric consultant has failed to identify any factors that could potentially mitigate the applicant’s conduct. 

A complete copy of the BCMR Psychiatric Consultant’s evaluation is at Exhibit F.  

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the additional Air Force evaluation was forwarded to the applicant on 5 October 2016 for review and comment within 30 days (Exhibit G).  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 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 an 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 10 U.S.C § 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 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 UCMJ.  In view of the above, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPR) and adopt the rationale expressed as the basis for our conclusion the applicant has not been the victim of an error or injustice.  We considered upgrading the discharge based on clemency; however, we find the evidence presented insufficient to recommend relief on that basis.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought.

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-2015-03029 in Executive Session on 1 and 7 November 2016 under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 17 June 2015, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 17 November 2015, w/atch.
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 8 February 2016.
	Exhibit E.  Letter, AFCMR, dated 19 February 2016.
	Exhibit F.  Memorandum, BCMR Psychiatric Consultant, dated
			  3 October 2016.
	Exhibit G.  Letter, AFBCMR, dated 5 October 2016.  

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.