RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 				DOCKET NUMBER: BC-2015-03170

							COUNSEL:  NONE

							HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to a general discharge.  

APPLICANT CONTENDS THAT:

While his BCD was warranted for his misconduct, the passage of 25 years, the guilt and remorse he has felt during that time, merit consideration for a discharge upgrade.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 2 Apr 86.

On 17 Nov 88, the applicant was identified as a drug abuser. 

On 9 Dec 88, the applicant was issued a letter of reprimand (LOR) for Failure to Go.  

On 21 Feb 89, the applicant was apprehended for being absent without leave (AWOL) since 3 Jan 89.   

On 13 Apr 89, General Court-Martial Order No. 43, was issued approving the applicant’s sentence of a dishonorable discharge, confinement for 4 yrs, forfeiture of $466.00 pay per month for 4 years, and reduction to the grade of airman basic.  The entire sentence, except for the dishonorable discharge, was directed to be executed. 

On 19 Dec 89, General Court-Martial Order No. 71 was issued affirming the applicant’s sentence to include a bad conduct discharge (BCD), confinement for 48 months, forfeiture of $466.00 pay per month for 48 months, and reduction to the grade of airman basic.  It also directed the BCD to be executed.  

On 8 Jan 90, the applicant was furnished a BCD, and was credited with two years, ten months, and nineteen days of active service.   

On 9 Dec 15, SAF/MRBR sent the applicant the Upgrade of Discharge – Clemency Information Bulletin (Exhibit C).  As of this date, the applicant has not responded.  

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit D.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice warranting granting the requested relief.  Notwithstanding the above, the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, should be corrected to reflect he was ordered separated with a BCD, not a dishonorable discharge.  

The applicant was tried by general court-martial in 1989 for being absent without leave for over 30 days, divers use of cocaine, forging seven checks valued at $855.00, and uttering seven forged checks for goods and services valued at $652.05, in violation of Articles 86, 112a, 123, and 123a, Uniform Code of Military Justice (UCMJ), respectively.  The applicant was represented by military defense counsel at trial.  He pled guilty to all of the charges and was sentenced to four years of confinement, forfeiture of all pay and allowances, reduction to the grade of E-1, and a dishonorable discharge.  All cases resulting in dismissal, dishonorable discharge, or BCD must be reviewed by the Appellate Court for legal sufficiency.  At the conclusion of this mandatory appellate review, only so much of the sentence which provided for confinement for four years, forfeiture of $466.00 pay per month for four years, reduction to the grade of E-1, and a BCD was affirmed.  This revised sentence was ordered executed on 19 Dec 89 via General Court-Martial Order No. 71.  It is worth noting that while only a BCD was ordered executed after appellate review of the originally adjudged dishonorable discharge, the applicant’s DD Form 214 indicates a “dishonorable” service characterization.  This appears to be an error.  The punishment adjudged and approved by the convening authority was within the range of permissible punishments.  There is no evidence or allegation that the applicant was not afforded all of his procedural due process rights at trial and on appeal.  The Board has no authority to overturn the court-marital conviction, but may, on the basis of clemency, adjust the sentence.

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 7 Mar 16 for review and comment within 30 days (Exhibit E).  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 took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice with respect to his discharge.  The applicant’s discharge was based on his trial and conviction by a general court-martial.  Evidence has not been provided to show that the discharge was erroneous or unjust.  While we are precluded by law from reversing a court-martial conviction, we are authorized to correct the records to reflect actions taken by reviewing officials and to take action on the sentence of a military court based on clemency; however, the applicant did not provide any post-service information for us to evaluate whether or not his post-service contributions warrant an upgrade of his discharge.  Therefore, in the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought.  

4.  Notwithstanding our findings above, sufficient relevant evidence has been presented to demonstrate the existence of an administrative error to warrant correcting the applicant’s DD Form 214, Certificate of Discharge or Release from Active Duty.  In this respect, we note AFLOA/JAJM’s comments that while only a BCD was ordered executed after appellate review of the originally adjudged dishonorable discharge, the applicant’s DD Form 214 indicates a “dishonorable” service characterization, and, while the applicant has not provided any information regarding an error or the injustice that would tend to undermine the bad conduct discharge that was affirmed for his case, this error should be corrected.  We agree with AFLOA/JAJM that the applicant’s DD Form 214 should be corrected.  The Board has an abiding obligation to correct an error when it finds one in the record.  Therefore, we recommend the applicant’s record be corrected as indicated below.  

THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that his DD Form 214, Certificate of Discharge or Release from Active Duty, dated 8 January 1990, be amended in item 24, Character of Service, to reflect “Bad Conduct” rather than “Dishonorable.” 

The following members of the Board considered AFBCMR Docket Number BC-2015-03170 in Executive Session on 19 May 16, under the provisions of AFI 36-2603:

All members voted to correct the records as recommended.  The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-03170 was considered:

	Exhibit A.  DD Form 149, dated 22 Jun 15.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Clemency Bulletin, SAF/MRBR, dated 9 Dec 15.  
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 29 Feb 16.
	Exhibit E.  Letter, SAF/MRBR, dated 7 Mar 16.

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 the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.