RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01484 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded. _________________________________________________________________ APPLICANT CONTENDS THAT: He suffered from Post Traumatic Stress Disorder (PTSD) while he served on active duty and his overall service was good. His discharge characterization should be changed to reflect the conduct of his actual service. He completed a Sex Offenders Education and Treatment Program. He was not provided medical treatment prior to his discharge. In support of the appeal, the applicant provides copies of a personal statement, Treatment Summary/Discharge Plan, five certificates of completion, DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, and a copy of his DD 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 enlisted in the Regular Air Force as an airman basic on 19 Jul 85 for an initial term of four years. On 13 Oct 87, he was tried by a Special Court-Martial with three specifications of communicating indecent language to three separate individuals, in violation of Article 134, Uniform Code of Military Justice (UCMJ). The applicant pled guilty to the charge and specifications. The military judge found the applicant guilty and sentenced him to a BCD, forfeiture of $300.00 pay per month for three months, confinement for three months, and reduction to the grade of airman basic. On 27 Nov 87, the convening authority approved the findings and sentence as adjudged. On 12 Jan 88, the Air Force Court of Military Review affirmed the findings and sentence. A petition to the United States Court of Military Appeals for review of the applicant’s case was not submitted, making the findings and sentence final and conclusive under the UCMJ. On 22 Jul 88, the applicant was furnished a BCD and was credited with 10 years, 3 months, and 11 days of total active service. Pursuant to the Board's request, the Federal Bureau of Investigation (FBI), Clarksburg, WV, provided a copy of an Investigation Report, which is at Exhibit C. On 21 Jul 11, a copy of the FBI report and a request for post- service documentation to support his request was provided to the applicant for review and comment within 30 days (Exhibit F). In response the applicant states that he served honorably prior to his misconduct. He admits to the crimes that he committed and admits that he was sexually assaulted as a child and believes his own molestation is the cause of his sexual deviation. He asks the Board to please consider clemency and mercy of his request (Exhibit G). _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. The applicant has not identified an error or injustice related to his prosecution or the sentence. He pled guilty at trial to the charge and specifications. On the court’s acceptance of his plea, it reviewed evidence in aggravation, as well as in extenuation and mitigation, prior to the applicant’s sentence for the crimes committed. The applicant made an unsworn statement in his own behalf and the defense introduced evidence in support of leniency for the applicant. The imposed sentence was below the maximum possible sentence of a BCM, confinement for six months, 2/3 pay per month for six months and reduction to the grade of airman basic. While clemency may be granted under 10 U.S.C. 15529(f)(2), the applicant has not provided sufficient justification for his request and clemency is not warranted in this case. The inclusion of a BCD in the applicant’s sentence was well within the legal limits and was part of an appropriate punishment for the offense committed. The applicant provided a letter explaining how he believes his service was honorable and his medical issues were not adequately addressed by the Air Force. He also indicates that he is currently incarcerated and has completed sex offender counseling and treatment. He did not indicate the reason for his incarceration, but it appears to have been a lengthy stay or multiple stays in prison, since he provided certificates showing participation in the program in 2001, 2002 and 2009. The last certificate is dated 24 Feb 09, indicates completion of a one year program of sex offender education and treatment. In consideration of these facts, clemency from the Board is not appropriate. 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 their 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 the sentence of a general court-martial. This makes sense if the benefit program is to have any real value. It would be offensive to all those who served honorably to extend the same benefits to someone who committed a crime such as the applicant’s while on active duty. 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 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 an error or injustice. 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 AFLOA/JAJM and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice. We find no evidence which indicates the applicant’s BCD, which had its basis in his conviction by a 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 UCMJ. While we are precluded by law from reversing a court-martial conviction, we are authorized to correct the records to reflect actions taken by reviewing officials and to take action on the sentence of a military court based on clemency. We considered upgrading the discharge based on clemency; however, we are not inclined to recommend upgrading his discharge on this basis at this time. In view of the foregoing, and in the absence of sufficient 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 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-2011-01484 in Executive Session on 15 Dec 11, under the provisions of AFI 36-2603: The following documentary evidence pertaining to AFBCMR Docket Number BC-2011-01484 was considered: Exhibit A. DD Form 149, dated 5 Apr 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhibit D. Letter, AFLOA/JAJM, dated 15 Jun 11. Exhibit E. Letter, SAF/MRBR, dated 24 Jun 11. Exhibit F. Letter, AFBCMR, dated 18 Jul 11, w/atchs. Exhibit G. Letter, Applicant, dated 15 Aug 11.