RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-01383 INDEX CODE: 110.00 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to a general discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: He has after 25 years, proven to himself and those around him, that he is a much better person than the young man that made those mistakes so long ago. He wants his discharge upgraded in order to seek employment with the government. He also needs his discharge upgraded to receive benefits from the Department of Veterans Affairs (DVA). In support of his appeal, the applicant provides a personal statement, a copy of his DD Form 214, Certificate of Release or Discharge From Active Duty, his National Archives and Records Administration (NA 13038) Certification of Military Service, his DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, and one character reference. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 31 Mar 80, the applicant contracted his initial enlistment in the Regular Air Force. On 30 Mar 84, he reenlisted in the Air Force and as served as an Avionics Navigation Systems Specialist. The applicant was tried by general court-martial on 19 Jun 85 for using marijuana and dereliction of duty for failing to report drug use by other military members. He pled guilty to the charges and specifications and sentenced to a BCD, confinement, forfeiture of pay and a reduction in rank to the grade of airman basic. On 30 Jul 85, the convening authority approved the sentence as adjudged. On 6 Dec 85, the Air Force Court of Criminal Appeals affirmed the findings and sentence. On 26 Jun 85, the United States Court of Military Appeals for the Armed Forces set aside his conviction for dereliction of duty but upheld his conviction for using marijuana. On 30 Oct 86, the convening authority ordered the BCD be executed. He was discharged on 26 Nov 86. He served 6 years, 4 months and 17 days of active service. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. On 2 Nov 10, a copy of the Investigative Report was forwarded to the applicant along with a request for post-service documentation for review and comment within 30 days (Exhibit D). As of this date, no response has been received by this office. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM notes the applicant's case was conducted properly and in accordance to the rules and procedures of courts-martial. His rights during the trial and appeal were thoroughly observed. The court received and considered evidence regarding the charge of dereliction of duty and determined the dereliction of duty would not be considered in determining the appropriate sentence for the offense committed. The imposed sentence was well within the legal limits and was an appropriate punishment for the offense committed. The fact that the applicant contends that he cannot obtain government employment due to his BCD does not erase his past criminal conduct, nor does it make his BCD any less appropriate for the offense he committed. While the applicant’s post- discharge efforts to improve himself and obtain steady employment are laudable, they do not justify clemency. To overturn this punishment now would require the Board to substitute its judgment for that rendered by those at that time when the facts and circumstances of the situation were fresh. His BCD was and continues to be part of a proper sentence and properly reflects his service. Additionally, to grant 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 Benefits Program was to express thanks for 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 sentence of general court-martial. The AFLOA/JAJM complete evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states in 1992, he was arrested for a misdemeanor driving while under the influence. He fulfilled all his Court ordered requirements. He entered a private inpatient alcohol treatment facility and is living a sober life. He is unemployed and fills his life by helping his parents and other elderly people in the community. The appreciation he gets from this keeps his heart full and away from the selfish destructive ways of his past. Employment in his area is terribly slow and upgrading his discharge would allow him the opportunity to apply for work with the government which would provide him another chance to work in his trade, get off unemployment and be a productive taxpaying member of society. Although, he feels he is not entitled to a discharge upgrade; he hopes consideration for an upgrade based on that he is a better person and it has been 24 years since his discharge. The applicant’s complete response 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 an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and the recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has failed to sustain his burden of proof of the existence of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. _________________________________________________________________ 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 AFBCMR Docket Number BC-2010-01383 in Executive Session on 7 Dec 10, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 4 Mar 10, w/atchs. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. FBI Investigative Report. Exhibit D. Letter, AFLOA/JAJM, dated 21 Sep 10. Exhibit E. Letter, SAF/MRBR, dated 1 Oct 10. Exhibit F. Letter, AFBCMR, dated 2 Nov 10, w/atchs. Exhibit G. Letter, Applicant, dated 23 Nov 10. Panel Chair