RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02238 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: He was given a BCD for false swearing. He was asked if he was homosexual and he replied “no.” Later, it had come out that he was homosexual, so he was given a BCD. The applicant does not provide any evidence in support of his appeal. A copy of the applicant’s complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force. Accordingly, there is no need to recite these facts in this Record of Proceedings. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that upgrading the applicant’s BCD is not appropriate. JAJM indicates that under Title 10, United States Code (USC), Section 1552(f), which amended the basic corrections board legislation, the Air Force Board for Correction of Military Record’s (AFBCMR) ability to correct records related to courts- martial, is limited. Specifically, Section 1552(f)(1) permits the correction of a record to reflect actions taken by reviewing authorities under the UCMJ. Additionally, Section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of Section 1552(f) is that the AFBCMR is without authority to reverse, set-aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ). It is JAJM’s opinion that while clemency may be granted under Title 10 USC Section 1552 (f) (2), the applicant provides no justification or rationale for upgrading his BCD to an honorable discharge. Rule for Court-Martial 1003 (b)(8)(c) indicates that a BCD “is designed as 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. It is defined under the Rules as a punishment for the crimes the applicant committed while a member of the Armed Forces. The applicant’s sentence was well within the legal limits and was an appropriate punishment for the offense committed. JAJM states the mere fact that nearly 30 years have passed since the applicant’s court-martial does not erase his past criminal conduct or make his BCD any less appropriate for the offenses he committed. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority merely 30 years ago when the facts and circumstances were fresh. A BCD was and continues to be part of a proper sentence and properly characterizes his service. The complete JAJM evaluation is at Exhibit C. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 22 October 2010, for review and comment within 30 days. As of this date, this office has received no response. _________________________________________________________________ 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 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-2010-02238 in Executive Session on 3 March 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-02238: Exhibit A. DD Form 149, dated 15 Jun 10. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 21 Sep 10. Exhibit D. Letter, SAF/MRBR, dated 22 Oct 10.