RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01226 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His dishonorable discharge (DD) be upgraded to a general (under honorable conditions) discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: During the period in question, he was under tremendous stress due to his marital and family problems. He was not counseled or provided an opportunity for retention or rehabilitation. The applicant’s complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 26 Feb 93, the applicant contracted his initial enlistment in the Regular Air Force. He served as a Communication Cable Systems Apprentice. The applicant was charged with two specifications of being absent without leave (AWOL) from 16 Jan 96 to 28 Jan 96 and 1 Feb 96 to 5 Feb 96. He was tried by special court-martial on 22 Feb 96, pled guilty to the charge and specifications, and was sentenced to a BCD, confinement, forfeiture of pay, and a reduction to the grade of airman basic (E-1). On 10 Jun 96, the convening authority approved the findings and sentence as adjudged. The Air Force Court of Criminal Appeals affirmed the findings and sentence of this case on 23 Jan 97. The applicant appealed to the United States Court of Appeals for the Armed Forces and the court denied his appeal on 21 Apr 97. The applicant’s BCD was ordered executed on 3 Jun 97. On 9 Jun 97, he was furnished a BCD and credited with 4 years, 2 months, and 14 days of active service. He had 22 days of lost time. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial to upgrade the applicant’s discharge to general. The applicant alleges his DD was not warranted. He also states he was not provided counseling or given a chance at rehabilitation. 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 and the applicant has not identified any errors or injustices related to his prosecution or sentence. The applicant voluntarily pled guilty to the charge and specifications. The military judge weighed all the evidence and imposed an appropriate punishment for the offenses committed. 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. Notwithstanding the above, it appears as though the applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, erroneously reflects he received a DD. JAJM has verified through the Record of Trial and the Air Force Automated Military Justice Analysis and Management System (AMJAMS) he received a BCD, not DD as part of his court-martial sentence. The 76th MSS/DPMARS by memorandum dated 13 Jun 97 acknowledged the noted error and recommended the applicant’s DD Form 214 be corrected. JAJM recommends his DD Form 214 be corrected to reflect he received a BCD rather than a DD if the correction has not already taken place. The complete AFLOA/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 24 Jun 11 for review and comment within 30 days. As of this date, no response has been received by this office (Exhibit D). _________________________________________________________________ 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 to warrant an upgrade of the applicant’s discharge to general. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility (OPR) and adopt its rationale as the basis for our decision that the applicant has failed to sustain his burden of proof of the existence of an error or an injustice. Although the applicant’s record erroneously reflects he received a dishonorable discharge, his record will be administratively corrected to reflect that he actually received a BCD. We considered upgrading the discharge based on clemency; however, in the absence of any evidence related to the applicant’s activities since leaving the service, we find no basis to recommend granting the relief sought on that basis. Therefore, in view of the above, we find no basis to recommend any corrections to his record beyond that which will be administratively resolved. _________________________________________________________________ THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and 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-2011-01226 in Executive Session on 6 Dec 11, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 30 Mar 11. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 26 May 11. Exhibit D. Letter, SAF/MRBR, dated 24 Jun 11. Panel Chair