RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2007-04124 INDEX CODE: 110.00 COUNSEL: HEARING DESIRED: NO ________________________________________________________________ _ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to an honorable discharge. ________________________________________________________________ _ APPLICANT CONTENDS THAT: He has a recently diagnosed psycho-neurological disability. In the interest of justice, he asks the Board to consider the fact that this disability was unknown at the time of his entry in the Air Force and was present during the time of his erred judgment. In support of his request, the applicant provides a personal statement, a copy of AF Form 100, Request and Authorization for Separation, a copy of the proceedings for his General Court- Martial, medical documentation, an exploratory career assessment, and a letter from the Maryland Statement Department of Education - Division of Rehabilitation Services. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ _ STATEMENT OF FACTS: The applicant enlisted in the Regular Air Force on 22 September 1999. The applicant was tried by a General Court-Martial and pled guilty to the wrongful use of numerous controlled substances, including ecstasy, mushrooms, ketamine and lysergic acid diethylamide (LSD) between on or about 1 September 2000 and 4 December 2000, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). He was found guilty and the sentence was adjudged on 23 May 2001. He was sentenced to a BCD, confinement for 15 months, forfeiture of all pay and allowances, and a reduction to the grade of airman basic. On 27 March 2002, the applicant was discharged with a BCD. He served 1 year, 8 months and 1 day on active duty, with days of lost time from 23 May 2001 through 27 March 2002. ________________________________________________________________ _ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states the applicant has identified no error or injustice related to his prosecution or the sentence. The applicant’s personal history and the fact that he has been diagnosed with a cognitive disorder do not constitute an error or injustice in the court-martial or appellate process. The applicant admitted to using and possessing controlled substances. While clemency may be granted, the applicant has not presented any information demonstrating that such action by the Board would be appropriate. While the neuropsychological diagnosis in the applicant’s case presents a somewhat sympathetic situation for the Board’s consideration, the applicant has not shown himself entirely worthy of clemency. It is difficult to lay the blame for the applicant’s joblessness entirely at the feet of his diagnosis or the difficulty posed by a BCD when the applicant has not entirely abandoned the practices that were the cause of that BCD in the first place. Additionally, aside from documentation of his diagnosis, the applicant has not provided any support for the proposition that he has turned his life around or that he has made a difference in his community – things which might also warrant some consideration for clemency. Clemency in this case would be unfair to those individuals who honorably served their country while in uniform. It would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime such as the applicant’s while on active duty. The JAJM complete evaluation is at Exhibit C. ________________________________________________________________ _ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 27 February 2009, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days (Exhibit D). In a letter dated 6 March 2009, the applicant requested his case be administratively closed (Exhibit E). In accordance with his request, his case was administratively closed on 24 March 2009 (Exhibit F). In a letter dated 10 June 2010, the applicant requested his case be reopened. He states that he was discharged because of a pre-existing condition. The screening process failed and allowed him into the armed forces although not actually qualified. His misconduct in the Air Force is a direct result of his mental and psychological condition. He was never addicted to any single substance; rather his use of multiple substances suggests an experimental search for relief from the symptoms he suffered. Also, because his chronic condition was discovered after his discharge, neither the military judge nor the convening authority considered this crucial extenuating evidence. Had this condition been known at that time, the convening authority may have decided to dispose of the charges at a lower forum. He now suffers the stigma of a bad conduct discharge. He is currently enrolled in classes to further his education. While he will forever carry the burden of the felony conviction, an honorable discharge will go far toward correcting the unjust and overly harsh result of his case. The applicant’s complete submission, with attachments, is at Exhibit G. ________________________________________________________________ _ 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. After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust. In view of the foregoing, we agree with the opinion and recommendation of the Military Justice Division and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden of proof of the existence of either an error or an injustice. Therefore, based on the evidence of record, we find no basis to recommend granting the relief sought in this application. ________________________________________________________________ _ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an 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-2007-04124 in Executive Session on 19 January 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2007-04124 was considered: Exhibit A. DD Form 149, dated 8 December 2008, w/atchs. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 10 February 2009. Exhibit D. Letter, SAF/MRBR, dated 27 February 2009. Exhibit E. Letter, Applicant, dated 6 March 2009. Exhibit F. Letter, SAF/MRBC, dated 24 March 2009. Exhibit G. Letter, Counsel, dated 10 June 2010, w/atchs.