RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2008-03292 INDEX CODE: 110.00 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: He made a mistake, everyone makes bad decisions. He had a good record. He was setup by the military. The key witness for the Air Force slept with an officer and this was known; therefore, she was an unreliable witness. The applicant's complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Air Force on 15 Jan 79 and was progressively promoted to the rank of sergeant. On 23 Feb 83, he was tried by special court-martial and was charged with five specifications involving wrongful use, possession, and transfer of marijuana, in violation of Article 134, Uniform Code of Military Justice (UCMJ). He pled guilty to the charge and specifications. He was sentenced by a military judge to a bad conduct discharge, confinement at hard labor for two months, forfeiture of $380.00 pay per month for two months, and reduction in grade to airman basic. On 10 Jun 83, the convening authority approved the sentence of a BCD, confinement at hard labor for 30 days, forfeiture of $380.00 pay per month for two months and reduction in rank to airman basic. The Air Force Court of Military Review affirmed the findings and sentence on 4 Oct 83. The applicant petitioned the United States Court of Military Appeals for review of his conviction, but it was denied on 19 Mar 84, making the findings and sentence in his case final and conclusive under the UCMJ. He was discharged with a BCD on 4 May 84. He was credited with 5 years, 2 months, and 25 days of active military service. On 22 Dec 08, a request for post-service information was forwarded to the applicant for response within 30 days, as of this date, no response has been received by this office. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is attached at Exhibit C. On 8 Jan 09, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days, as of this date, no response has been received by this office. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM reviewed this application and recommends denial. JAJM states the application is untimely and the applicant’s contentions are without merit, there is no basis for upgrading the BCD. The applicant did not supply any evidence to back up his argument he “was setup” by the military. Furthermore, an examination of the Record of Trial shows not only that the applicant committed the offenses that he pled guilty to, but also that the defense was aware of the allegation before they made the decision to plead guilty. The applicant did not experience any error or injustice due to an unreliable witness, because the issue of the reliability of the witness was addressed at the applicant’s court-martial. The issue of the witness’ reliability was completely vetted by the military judge; he examined the entire personnel records of the witness and deemed there was nothing relevant in there to impact on her reliability. Clemency is also unwarranted in this case. The applicant was afforded all of the procedural rights offered by the court- martial appellate process. A BCD is designed as a punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature. A BCD is more than merely a service characterization, but as defined under the rules it is a punishment for the crimes the applicant committed while a member of the Armed Forces. The applicant has provided no information upon which the Board should base its decision to grant clemency. On the other hand, the record is clear that the applicant wrongfully used, possessed, and transferred marijuana. The applicant’s sentence was well within the legal limits and was an appropriate punishment for the very serious offenses the applicant committed. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority when the facts and circumstances were fresh. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ Benefit Program was to express thanks to veterans’ personal sacrifices, separations from family, facing hostile enemy action and suffering financial hardships. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. 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 complete JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 5 Nov 08, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received. _________________________________________________________________ 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 error or injustice. The applicant’s submission was thoroughly reviewed, and his contentions were duly noted. However, we do not find his assertions, in and of themselves, sufficiently persuasive to override the rationale provided by the Associate Chief, Military Justice Division. No evidence has been submitted which would lead us to believe that the characterization of his service was improper. In addition, in view of the contents of the FBI Identification Record we are not persuaded that the characterization of the applicant’s discharge warrants an upgrade to general on the basis of clemency. Having found no error or injustice with regard to the actions that occurred while the applicant was a military member, we conclude that no basis exists to grant favorable action on his request. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue involved. Therefore, the request for a hearing is not favorably considered. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that 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 Docket Number BC-2008-03292 in Executive Session on 19 Feb 09, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2008-03292 was considered: Exhibit A. DD Form 149, dated 20 Aug 08. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation. Exhibit D. Memorandum, AFLOA/JAJM, dated 27 Oct 08. Exhibit E. Letter, SAF/MRBR, dated 5 Nov 08. Exhibit F. Letter, AFBCMR, dated 22 Dec 08. Exhibit G. Letter, AFBCMR, dated 8 Jan 09.