RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-03365 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to an honorable discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: He is not a career criminal, just an individual who made a big mistake. His punishment was too harsh and inequitable based on one isolated incident. He would like his discharge upgraded so he could pursue a civil service career and perhaps even finish his military career in the Air Force Reserve or Air National Guard. Since his discharge, he has been a productive member of society with a clean record. He is just trying to make something of himself and provide a good life for his son. In support of his appeal, the applicant provides a personal statement and a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who entered active duty on 14 March 1984 in the grade of airman basic (E-1) and was progressively promoted to the grade of staff sergeant (E-5) effective 1 October 1990. On 1 August 1995, the applicant was tried at a special court- martial for one specification of wrongful use of a controlled substance on divers occasions, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). Pursuant to a pretrial agreement, he pled guilty to the charge and specification and was sentenced to a BCD, confinement for 30 days, forfeiture of $500 pay, and reduction to the grade of airman basic. On 13 September 1995, the convening authority approved the sentence. On 15 March 1996, the Air Force Court of Criminal Appeals affirmed the findings of the applicant’s court-martial, but found the staff judge advocate’s recommendation did not state that the convening authority must consider the matters the appellant submitted. Consequently the court disapproved the forfeiture in its entirety, but approved the BCD, 30 days confinement, and reduction to airman basic. The applicant petitioned the United States Court of Appeals for the Armed Forces for review of his conviction, but his request was denied on 5 September 1996, making the findings and sentence in his case final and conclusive under the UCMJ. As a result, the applicant’s discharge was executed on 5 September 1996. The applicant was discharged effective 9 September 1996 with a BCD. He served 12 years, 5 months, and 26 days on active duty. On 14 November 1997, the Air Force Discharge Review Board (AFDRB) considered and denied the applicant’s request to upgrade his discharge to honorable. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. 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 has provided very little justification for his request, and clemency is not warranted in this case. The applicant’s has not identified any error or injustice related to his prosecution or the sentence. His sentence to a BCD, confinement for 30 days, and reduction in grade to airman basic was well within the legal limits and was an appropriate punishment for the offenses committed. The mere fact the applicant says that he feels his BCD is too harsh does not erase his past criminal conduct, does not make his BCD any less appropriate for the offenses he committed, and certainly does not weigh in favor of Board action now to undo that part of the punishment. 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 18 February 2011 for review and comment within 30 days (Exhibit D). 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 error or injustice. We note 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 to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency. We find no evidence which indicates the applicant’s service characterization, which had its basis in his conviction by special court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ). We have considered the applicant's overall quality of service, the special court-martial conviction which precipitated the discharge, and the seriousness of the offense of which convicted, e.g., wrongful use of a controlled substance. Based on the evidence of record, we are not persuaded that the characterization of his discharge warrants an upgrade to honorable on the basis of clemency. In view of the above, we conclude that no basis exists to grant favorable action on his request. ________________________________________________________________ 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-2010-03365 in Executive Session on 16 June 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2010-03365 was considered: Exhibit A. DD Form 149, dated 8 Sep 10, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 6 Jan 11. Exhibit D. Letter, SAF/MRBC, dated 1 Feb 11.