RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-01976 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to a general discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: He was told by the Airman’s Advocacy Group that if he proceeded with the recommended court martial process he would be eligible for an upgrade in a few years following his discharge if his discharge caused a hardship. His BCD is causing a hardship on his professional career and is affecting his family’s quality of living. For the past five years he has worked with a private aerospace company. He started as a general support mechanic, and shortly after earning his Bachelor’s Degree in Professional Aeronautics, he was promoted to a program business analyst. Through continuing education and career development, he is currently a program business manager. He has also earned a Master’s Degree in Business Administration. He has been granted a Department of Defense (DoD) secret clearance but because of his discharge category, he has not been able to work certain programs. The company he works for is an aerospace company, and the nature of work available that does not require an acceptable clearance is extremely limited. Given his security clearance level and the fact he cannot work certain programs, he has been informed his position and employment are at risk. His company has invested thousands of dollars into his employment and the DoD investigation, as they see him as a valuable asset to their company. Given the time he has invested in his career, and the state of the economy, a career/company change would place his family in a desperate position. In the seven years following his discharge, he has lived a life of forward momentum with no problems or issues. He has worked to rebuild his life and this hard work has been recognized by all that have vested interest in his success and the contribution he provided to them. His only hindrance is the category of his discharge. In support of his request, the applicant provides a personal statement, a DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States, his DD Form 214, Certificate of Release or Discharge from Active Duty, copies of his undergraduate and graduate transcripts and diplomas, and several reference letters. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant enlisted in the Air Force on 17 Feb 99 and was progressively promoted to the grade of senior airman. On 5 Feb 02, he was tried by general court-martial for using methamphetamine six separate times between Nov 99 and Aug 01. He was eventually charged with 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, the applicant pled guilty to the charge and specification and was sentenced by a military judge to a bad conduct discharge, confinement for 10 months, forfeiture of all pay and allowances and reduction to (E-1) airman basic. On 9 Jul 02, the convening authority approved only so much of the sentence as called for a bad conduct discharge, seven months confinement, forfeiture of all pay and allowances and reduction to E-1. The Air Force Court of Criminal Appeals affirmed the findings and sentence on 17 Jan 03. The applicant petitioned the United States Court of Appeals for the Armed Forces for review of his conviction, but it was denied on 16 May 03, making the finding and sentence in his case final and conclusive under the UCMJ. On 17 Aug 03, the applicant was discharged with a BCD. He was credited with 4 years, 4 months, and 25 days of 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 9 Aug 11, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days (Exhibit F). ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial based on the application being untimely and without merit. JAJM states the applicant has identified no error or injustice related to his prosecution or the sentence. An examination of the record of trial shows no error in the processing of the court-martial. Prior to trial, the applicant entered into a pretrial agreement. This agreement specified that the applicant agreed to plead guilty to the charge and specification, in exchange for which the convening authority agreed not to approve confinement in excess of nine months and if a dishonorable discharge was adjudged, to approve no discharge more severe than a BCD. The applicant pled guilty at trial to the charge and specification as was agreed to in the pretrial agreement. Clemency may be granted under Title 10, United States Code (USC), 1552(f)(2); however, such clemency is not appropriate in this case. The applicant’s drug use was not a one-time use, but consisted of six separate occasions over the course of about 21 months. A BCD is designed as punishment for bad-conduct. A BCD is more than merely a service characterization; it is a punishment for the crimes the applicant committed while a member of the armed forces. The applicant’s approved sentence to a BCD and confinement for seven months was well within the legal limits and was an appropriate punishment for the offenses committed. Additionally, 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’ Benefit Program was to express thanks to veterans’ personal sacrifices, separations from 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. 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 JAJM evaluation is at Exhibit D. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 9 Aug 11, 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. ________________________________________________________________ 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-2011-01976 in Executive Session on 4 Oct 11, under the provisions of AFI 36-2603: The following documentary evidence pertaining to Docket Number BC-2011-01976 was considered: Exhibit A. DD Form 149, dated 11 May 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation, dated 29 Jul 11. Exhibit D. Letter, AFLOA/JAJM, dated 23 Jun 11. Exhibit E. Letter, SAF/MRBR, dated 9 Aug 11. Exhibit F. Letter, SAF/MRBC, dated 9 Aug 11.