ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-1992-00264

xxxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

The Board reconsider his request have his bad conduct discharge upgraded.

RESUME OF THE CASE

The applicant is a former Air Force airman basic (E-1) who received a bad conduct discharge effective 15 Dec 72, with a narrative reason of “conviction by court-martial.”  

On 27 Nov 73, the applicant applied to the Air Force Discharge Review Board (DRB).  On 14 Mar 74, the DRB considered and denied his request for an upgrade of his discharge, finding the discharge was equitable and proper.

Dated 18 May 77, a letter to the applicant regarding the Special Discharge Review Program, informed him he was not eligible under this program for a discharge upgrade.

On 29 Apr 79, the DRB again considered and denied his request for an upgrade of his discharge, finding the discharge was consistent with procedural and substantive requirements of the discharge regulation and was within the discretion of the discharge authority.

On 6 Aug 80, the applicant again applied to the DRB.  On 1 Oct 80, his request was denied stating additional evidence of such a nature as to warrant a rehearing of this case has not been offered.

On 6 Nov 81, the applicant applied to the Board.  On 12 Mar 82, his request was denied due to insufficient evidence.

On 26 May 92, the Board considered and denied his request for a discharge upgrade, finding the prior request was not timely submitted and insufficient evidence was provided of an error or injustice to justify relief based on merit.

On 15 Feb 94, the applicant’s request for a discharge upgrade by the Board was denied due to no new relevant evidence, which did not meet the criterion for reconsideration.

For an accounting of the applicant’s original request and the rationale of the earlier decisions, see the AFBCMR Letter and Record of Proceedings at Exhibit E and excerpt of the applicant’s record at Exhibit G.

On 5 Dec 19, the applicant requested reconsideration of his request for a discharge upgrade.  He states the punishment he received was too harsh for the situation he was accused of.  He was never given a chance to appeal the court-martial decision.  He tested positive on a urine analysis test, panicked and went absent without leave (AWOL).

The applicant’s complete submission is at Exhibit F.

POST-SERVICE INFORMATION

On 2 Sep 20, the Board sent the applicant a request for post-service information, including a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 20 Oct 20 (Exhibit I).  According to the report, the applicant was arrested on 30 Apr 85 for battery, on 2 Jan 97, 4 Feb 00, and 30 May 00 for simple assault, on 29 May 00 for driving under the influence (DUI).

APPLICABLE AUTHORITY

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7.

On 2 Sep 20, the Board staff provided the applicant a copy of the clarifying guidance (Exhibit H).

This Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections reflecting actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.

FINDINGS AND CONCLUSION

1.  After reviewing all Exhibits, the Board remains unconvinced the evidence presented demonstrates an error or injustice.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, and the criminal history provided by the applicant, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s record.

2.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.
CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-1992-00264-2 in Executive Session on 24 Jun 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit E:	Record of Proceedings, w/ Exhibits A-D, dated 26 May 92.
Exhibit F:	Application, DD Form 149, w/atchs, dated 5 Dec 19.
Exhibit G:	Documentary evidence, including relevant excerpts from official records.
Exhibit H:	Letter to applicant, SAF/MRBC (FBI/Clemency), dated 2 Sep 20. 
Exhibit I:	Applicant’s Response, dated 20 Oct 20.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.