RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2011-04485 COUNSEL: HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to a General (Under Honorable Conditions) Discharge. ________________________________________________________________ APPLICANT CONTENDS THAT: It has been 27 years since his discharge. He humbly accepted the conditions of his 1983 discharge for bad conduct. Today, his appeal for clemency is based upon his conduct and contributions to society since his discharge. In support of his request, the applicant provides an expanded personal letter to the Board, multiple letters of recommendation, articles highlighting his contributions to society, and information about an arrest before he entered the Air Force. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Air Force on 14 Aug 74. On 15 Dec 82, he was convicted at a General court-martial for violating Article 134 of the Uniform Code of Military Justice (UCJM). Specifically, for wrongfully selling a habit forming narcotic drug, to wit: cocaine. He pled guilty, and was sentenced to hard labor for 12 months, forfeiture of $200 per month for 12 months, reduction in grade to Airman Basic (E-1), and a BCD. On 6 Dec 83, he was furnished a BCD after serving the term of his confinement in prison. The remaining relevant facts pertaining to this application are contained in the letter prepared by the appropriate office of the Air Force, which is attached at Exhibit D. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial, indicating there is no evidence of an error or injustice. The applicant offers no allegation of injustice. He simply requests an upgrade to his BCD because he improved his life and has lived admirably since his discharge. The applicant alleges no error in the processing of the general court-martial conviction against him. He pled guilty at trial to the charge and its specification as was agreed to in the pretrial agreement. He received the benefit of his pretrial agreement when the Convening Authority did not approve the adjudged dishonorable discharge and instead approved the bad conduct discharge. While clemency may be granted under 10 U.S.C § 1552(f)(2), clemency is not warranted in this case. The applicant’s sentence to a BCD and confinement for one year was well within the legal limits and was an appropriate punishment for the offense committed. Further, the applicant’s previous Article 15 for possession of marijuana is an aggravating factor upon which the court could have properly based the lawful sentence imposed. Congress’ intent in setting up the Veteran’s Benefits Program was to express thanks for veterans’ personal sacrifices, separations from family, facing hostile enemy actions and suffering financial hardship. All rights of a veteran under the laws administered by the Secretary of the Veterans Affairs are barred where the veteran was discharged or dismissed by reason of the sentence of a general court-martial. While the applicant should be commended for the life he has led since his discharge, the fact remains that he was dismissed as a result of a general court-martial sentence. The applicant’s service time was punctuated by cocaine use and distribution, which should not be rewarded by the granting of veteran’s benefits. Upgrading the applicant’s BCD is not appropriate. The complete AFLOA/JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant, through counsel, reiterates that he believes he has done everything in his power to live a productive life and be a positive influence in society, and deserves clemency for the crime he committed nearly 30 years ago. He highlights that he is not asking the Board to expunge his court-martial conviction as discussed in the advisory, rather he seeks clemency by upgrading his discharge. In addition, he disagrees that he has provided no justification for clemency as the advisory states. The documentation he provided is clear justification for clemency for positive post-trial rehabilitation and actions of exemplary behavior (Exhibit F). ________________________________________________________________ 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. We note 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), our actions 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 his 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). However, under our broader mandate and after careful consideration of all the facts and circumstances of the applicant's case, the Board is persuaded that he developed into a productive member of society since leaving the service. It is apparent he has lived a life characterized by significant contributions to society and dedicated service to the youth in his community over a many year period. Based upon his lifetime of accomplishments, we believe the continued stigma of his Bad Conduct Discharge is unduly harsh and no longer serves any useful purpose. Therefore, in the interest of justice, and in view of the passage of time and his post-service adjustments, we believe upgrading the characterization of his service to one under honorable conditions (general) is warranted on the basis of clemency. 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 issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 6 December 1983 that on 6 December 1983 he received a General (Under Honorable Conditions) Discharge, and was furnished a General (Under Honorable Conditions) Discharge Certificate. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2011-04485 in Executive Session on 14 Jun 12, under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 24 Oct 11, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report. Exhbitd D. Letter, AFLOA/JAJM, dated 24 Jan 12. Exhibit E. Letter, SAF/MRBR, dated 10 Feb 12. Exhibit F. Letter, Applicant’s Counsel, dated 9 Mar 12.