RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-03760 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded and his records be expunged. _________________________________________________________________ APPLICANT CONTENDS THAT: He served his time for being absent without leave (AWOL). He was led to believe that his discharge would be upgraded to general and his records would be expunged. It has been 40 years since his discharge and he has not been in any trouble with the law for a long time. He owns a small engine repair shop. He would like his discharge upgraded in order to be able to retrieve his pawned firearms. The applicant’s complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 9 Apr 69, the applicant contracted his enlistment in the Regular Air Force. The applicant was tried and convicted by general court-martial on 19 and 20 Apr 71 for desertion and missing a movement. He was sentenced to a BCD, seven months confinement, forfeiture of $75.00 of pay per month for four months, and a reduction in rank to the grade of airman basic (E-1). On 9 Jun 71, the convening authority approved the sentence as adjudged. On 28 Jun 71, the United States Court of Military Review affirmed the court-martial conviction. He did not appeal to the United States Court of Military Appeals, therefore making the findings and sentence of court-martial final. He was furnished a BCD on 31 Jul 00, and credited with 1 year, 4 months, and 15 days of active duty. Pursuant to the Board’s request, the Federal Bureau of Investigation (FBI) provided a copy of an Investigative Report, which is at Exhibit C. _________________________________________________________________ On 30 Nov 11, a copy of the FBI Investigative Report and a request for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit D). In response, the applicant indicates that he was doing fine prior to going AWOL, but found active duty to be a different experience. However, the military seemed to be racist because he was blamed by some of the African American people for almost anything that went wrong. Since leaving military service he has gotten married and has two children; worked with his father in- law in landscape maintenance; and worked at several golf courses as an equipment mechanic. He also worked for a small engine repair shop. He started his own small engine shop and has done fairly well. He has been a good citizen and an asset to his community. He believes if he had stayed in the military he may not be the person that he is today. The applicant’s complete response, with attachments, is at Exhibit E. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial noting no error was found in the processing of the applicant’s court-martial. Although, the applicant pled not guilty at trial; the court determined guilt to his charges of desertion and missing a movement. The applicant elected to testify on his own behalf and admitted that he deserted from his unit prior to departing to his next assignment. He stated he decided that he was a conscientious objector and sought out advice on how to obtain conscientious objector status. Although, he had not yet claimed conscientious objector status, the applicant failed to report to his flight. He acknowledged that he knew he was in deserter status, but intended at some point to return to the Air Force after he was granted conscientious objector status. Based on this evidence, the military judge found him guilty of both charges. The court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The military judge took all of these factors into consideration when imposing the applicant's sentence. The Rules for Courts-Martial states that a bad conduct discharge "is designed as punishment for bad-conduct." It also indicates that a bad conduct discharge is more than merely a service characterization; it is a punishment for the crimes the individual committed while a member of the armed forces. The applicant's sentence was within the legal limits and was an appropriate punishment for the offenses committed. A bad conduct discharge was and continues to be part of a proper sentence and properly characterizes his service. Additionally, to grant 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 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 sentence of general court-martial. The AFLOA/JAJM complete evaluation is at Exhibit F. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 11 Jun 12, for review and comment within 30 days (Exhibit G). As of this date, no response has been received by this office. _________________________________________________________________ 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 find no evidence which indicates the applicant’s service characterization, which had its basis in her court-martial conviction 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 court-martial conviction which precipitated the discharge, and the seriousness of the offenses to which convicted. Based on the evidence of record, we cannot conclude that clemency is warranted in this case. Therefore, in the absence of evidence to the contrary, we find no compelling 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-2011-03760 in Executive Session on 19 Jul 12, under the provisions of AFI 36-2603: The following documentary evidence was considered: Exhibit A. DD Form 149, dated 10 Sep 11, w/atchs. Exhibit B. Applicant's Master Military Personnel Records. Exhibit C. FBI Investigative Report. Exhibit D. Letter, AFBCMR, dated 30 Nov 11, w/atch. Exhibit E. Letter, Applicant, 26 Dec 11, w/atchs. Exhibit F. Letter, AFLOA/JAJM, dated 20 May 12. Exhibit G. Letter, AFBCMR, dated 11 Jun 12.