RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-04272 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to a general discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: He was turned down for a job due to his discharge status. He lost his job at the bank after 21 years and needs to support his family. In support of his request, the applicant provides copies of post service letters. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 18 November 1974, the applicant enlisted in the Air Force and was progressively promoted to the grade of staff sergeant. On 18 July 1984, he was tried by general court-martial for wrongful use of marijuana in violation of Article 134, Uniform Code of Military Justice (UCMJ) and making a false official statement in violation of Article 107, UCMJ. He was sentenced to a BCD, confinement for one month, forfeiture of $397.00 pay per month for one month and reduction to the grade of airman basic. On 30 October 1984, the convening authority approved the sentence that provided for a BCD; however, disapproved the finding of guilty for the Specification of Charge II of making a false official statement. On 16 Feb 90, the Air Force Court of Criminal Appeals affirmed the findings and sentence in the case. On 23 May 1986, after the appellate review was complete, the applicant was discharged with a BCD. He was credited with 9 years, 1 month and 6 days of total active military service. 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 19 January 2011, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days. At the same time the applicant was offered an opportunity to provide information pertaining to his activities since leaving the service (Exhibit F). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM reviewed this application and recommends denial based on the application being untimely. JAJM states the alleged injustice was discovered over 24 years ago. There has been an unexplained delay of over 21 years beyond the three-year limitation provided by Title 10, USC, Section 1552(b). The applicant provided no excuse or reason for the delay. JAJM states the applicant has identified no error or injustice related to the actions taken by the reviewing authority. While clemency may be granted under Title 10, USC, Section 1552(f)(2), the applicant provides no justification for his request. The sentence was within the legal limits and was an appropriate punishment for the offense committed. The complete JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 10 December 2010, 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 (Exhibit E). _________________________________________________________________ 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 that 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 also find no evidence which indicates the applicant’s service characterization, which had its basis in his conviction by general 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 general court-martial conviction which precipitated the discharge, and the seriousness of the offense to which convicted, and 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. In addition, based on the evidence of record, we are not persuaded the characterization of the applicant’s discharge warrants an upgrade to general on the basis of clemency. Therefore, based on the available evidence of record, we find no basis upon which to favorably consider this application. 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(s) 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-2010-04272 in Executive Session on 12 July 2011, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2010-04272 was considered: Exhibit A. DD Form 149, dated 12 Oct 10, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation, dated 15 Dec 10. Exhibit D. Letter, AFLOA/JAJM, undated. Exhibit E. Letter, SAF/MRBR, dated 10 Dec 10. Exhibit F. Letter, AFBCMR, dated 19 Jan 11, w/atchs.