RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04179

   						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS:

His Bad Conduct Discharge (BCD) be upgraded. 

APPLICANT CONTENDS:

Finding better employment has been difficult since he received his BCD.  He completed his Associate’s Degree since being discharged, but he needs an upgraded discharge to put him on the right path to recovery and to help support his family. 

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

STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 5 Feb 02.

On 5 Oct 06, the applicant was issued non-judicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).  The reasons for this action were on or about 31 Aug 06, without authority, he was absent from his appointed place of duty, and on or about 1 Sep 06, he was absent from his unit and remained absent until on or about 6 Sep 06. 

Under General Court-Martial Order No. 4, dated 14 Nov 11, the applicant was sentenced to a BCD, confinement for 15 months, forfeiture of all pay and allowances, and reduction to airman basic.  The reasons for this punishment were he plead guilty and was found guilty by Court-martial of:

	a.  Three counts of violating Article 107 of the UCMJ:

	1.  For signing an official record with intent to deceive, an “Application and Authorization to Start, Stop, or Change Basic Allowance for Quarter (BAQ) or Dependency Redetermination,” because his dependents were not residing in the area he designated by zip code.

	2.  For signing an official record with intent to deceive, an “Application for Do It Yourself Move and Counseling Checklist,” because he did not intend to transport his household goods to the location he listed. 

	3.  For signing an official record with intent to deceive, an “Application and Authorization to Start, Stop, or Change Basic Allowance for Quarter (BAQ) or Dependency Redetermination,” because his son was not residing in the location he indicated and was not in the applicant’s physical custody.  

	a.  Three counts of violating Article 121 of the UCMJ:

	1.  For, on divers occasions, stealing United States currency in the form of living allowances and cost of living adjustments of approximately $4,464.60. 

	2.  For stealing United States currency as reimbursement for a Do-It-Yourself-Move of a value of over $500.00.  

	3.  For, on divers occasions, stealing United States currency in the form of living allowances and family separation pay of a total value of approximately $23,548.70.  

On 23 Nov 11, the applicant was furnished a BCD, with a narrative reason for separation of “Court Martial (Other),” after serving 8 years, 11 months, and 20 days of active service.   

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 C.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice.  In accordance with Title 10 United States Code (USC), § 1552(f), the Board has no authority to overturn the court-martial conviction, but may, on the basis of clemency, adjust the sentence.  In Mar 10, the applicant was tried by a general court-martial for false official statements and larceny of military property.   The applicant pled guilty to all charges and specifications.  The maximum allowable punishment for the charges were forty five years confinement, forfeiture of all pay and allowances, reduction to E-1, and a dishonorable discharge.  He was sentenced to 16 months confinement, forfeiture of all pay and allowances, reduction to Airman Basic (E-1) and a BCD.  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, the court-martial was found to be legally sufficient.

There is no evidence or allegation the applicant was not afforded all of his procedural due process rights at trial and on appeal.  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 the military judge fashioned an appropriate sentence.  The applicant’s punishment was within the permissible punishments prescribed for the offense to which he pled guilty.  Recommend the Board deny the applicant’s requested relief as there is no evidence or allegation of error or injustice that tends to undermine the sentence adjudged at court-martial.

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

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

In further support of his application, the mother of one of the applicant’s sons submitted an e-mail and a character witness statement on his behalf.  The witness contends she is the individual who turned him in to the Office of Special Investigation for the activity for which he was court-martialed.  She notes his BCD has prevented him from finding a good job, and he is now $20,000 behind in his child support payments to her.  She contends he is now a man of integrity, a man of God, and a man who is using the lessons he learned to do better and educate young Airmen and his two sons. 

THE BOARD CONCLUDES:

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.  The applicant’s discharge was based on his trial and conviction by a general court-martial.  Evidence has not been provided to show the applicant's 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.  In view of the seriousness of the misconduct he committed, there is nothing in the available record which would cause us to disturb the actions of the reviewing officials in this case and we are not persuaded the characterization of his discharge should be upgraded based on clemency.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD DETERMINES:

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-2015-04179 in Executive Sessions on 18 Aug 16 and 14 Sep 16 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 16 Sep 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFLOA/JAJM, dated 7 Apr 16.
	Exhibit D.  Letter, SAF/MRBR, dated 12 Apr 16.
	Exhibit E.  E-mail, Applicant, dated 7 Sep 16, w/atch.

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.