RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2016-01864

						COUNSEL: 

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

His Bad Conduct Discharge (BCD) be upgraded to honorable.

APPLICANT CONTENDS THAT:

He made a mistake as a young man in service which he horribly regrets.  The mistakes and issues have hindered him from being able to move forward in his life.  He is trying to better himself as a person, father and as a member of society.  An upgrade of his discharge would be a huge step toward these goals.  It would also allow him to utilize the benefits available to veterans which he desperately needs.  He humbly requests an upgrade of his discharge to honorable.  

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

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 30 September 1985.

According to the AF Form 3070, Record of Nonjudicial Punishment Proceedings, dated 18 February 1987, the applicant received an Article 15 for failure to go to his place of duty on or about 10 February 1987.  Punishment included a reduction in grade to Airman Basic (AB, E-1) with a Date of Rank (DOR) of 23 February 1987.  

According to General Court-Martial Order Number 12 dated 30 September 1987, the applicant was charged, pled and found guilty of wrongful use of marijuana on divers occasions from on or about 1 February 1987 to on or about 15 March 1987, wrongful use of cocaine on divers occasions from on or about 5 November 1986 to on or about 15 March 1987, and wrongful distribution of some quantity of cocaine on or about 7 March 1987.  The sentence adjudged on 16 July 1987 included confinement at hard labor for 14 months, forfeiture of $720 pay per month for 14 months and a BCD.  On 30 September 1987, the convening authority approved only so much of the sentence to include forfeiture of $401.00 per month for 14 months, confinement for six months and a BCD.

On 29 April 1988, the applicant was discharged with a BCD and a narrative reason for separation of “Conviction by court-martial, other than desertion.”  He served 2 years, 1 month and 27 days of active duty service.  

On 17 August 2016, 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 memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit D.    

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  There is no evidence or allegation of an error or injustice that tends to undermine the sentence adjudged at trial.  The application is also untimely.  

The applicant’s request for an upgrade of his discharge is based on his desire to put his past behind him and to be able to use veterans’ benefits which he needs.  In accordance with 10 U.S.C. § 1552(f), the BCMR has no authority to overturn the court-martial conviction, but may, on the basis of clemency, adjust the sentence.  The applicant has not submitted any new evidence or information which tends to cast doubt on the outcome of his trial and has not detailed any specific reason or basis why he believes his allegations warrant relief.  The passage of time since conviction is not a sufficient justification for altering the sentence in this case.  AFLOA/JAJM sees no basis in law to suggest the applicant’s court-martial is an injustice warranting correction by the Board.  The applicant knew in 1988 that he was being discharged with a BCD.  

There is also no evidence to suggest his conviction and sentence were unsupported in law or fact, nor does he make any such allegation.  Through his guilty pleas, he accepted responsibility for his misconduct.  The punishment adjudged and approved by the convening authority was within the range of permissible punishments.  There is no evidence or allegation that he was not afforced all of his procedural due process rights at trial or during appellate review.  He also does not provide any explanation why this request was not made within three years of discharge.  His application could be denied on the basis of timeliness alone.  

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 21 March 2017 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 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 in the UCMJ.  In view of the above, we agree with the opinion and recommendation of the Air Force office 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 RECOMMENDS 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-2016-01864 in Executive Session on 3 August 2017 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 3 May 2016, w/atch.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFBCMR, dated 17 August 2016, w/atch. 
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 22 March 2017.  
	Exhibit E.  Letter, AFBCMR, mailed 21 March 2017.  

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.