RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02269 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge (BCD) be upgraded to general. _________________________________________________________________ APPLICANT CONTENDS THAT: He made a bad decision. He pled with the court to change his discharge to general and was informed it would be changed after many years. The applicant’s complete submission is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 28 Nov 88, the applicant enlisted in the Regular Air Force. On 1 May 90, he was tried and convicted by a general court- martial for one specification of wrongful use of cocaine. He pleaded guilty to the charge and was sentenced to a BCD, seven months confinement and reduced to the grand of airman basic. On 7 Jun 90, the convening authority approved the sentence as adjudged. On 24 Oct 90, the United States Air Force Court of Military Review affirmed the applicant’s court-martial conviction. On 20 Feb 91, his petition for a grade of review before the United States Court of Military Appeals was denied. The findings and conclusions of his case under the UCMJ were final. On 29 Apr 91, he was discharged for conviction by court-martial with a BCD. He served two years, five months and two days on active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request due to timeliness or on its merits. JAJM states upgrading the applicant’s BCD is not appropriate. JAJM states under 10 United States Code (USC) Section 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts-martial is limited. Specifically, section 1552(f)(1) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ. Additionally, section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of section 1552(f) is that the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 50 (the effective date of the UCMJ). JAJM states the applicant offers not allegation of injustice or error in the processing of the court-martial conviction against him. He pled guilty at trial to the charges and specifications. Prior to accepting a guilty plea, the military judge ensured he understood the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea was accepted by the court. The military judge explained the elements and definitions of the offenses to which the applicant pled guilty and the applicant explained in his own words why he believed he was guilty. JAJM notes both the adjudged and approved sentences were below the maximum possible sentence of a dishonorable discharge. The BCD is designed as punishment for bad-conduct and indicates that a bad conduct discharge is more than merely a service characterization, it is a punishment for crimes the applicant committed while a member of the armed forces. The applicant’s sentence was well within the legal limits and was an appropriate punishment for the offense committed. JAJM opines 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, etc. 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. The complete 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 3 Aug 12, for review and comment within 30 days. As of this date, this office has received no response (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 error or injustice. 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). In the interest of justice, we considered upgrading the discharge on the basis of clemency; however, after considering the applicant's overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offense of which convicted, and the absence of any documentation pertaining to his post-service activities, we cannot conclude that clemency is warranted. In view of the above, we cannot recommend approval based on the current evidence of record. _________________________________________________________________ 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 this application in Executive Session on 20 Feb 13, under the provisions of AFI 36- 2603: , Panel Chair , Member , Member The following documentary evidence was considered in AFBCMR BC- 2012-02269: Exhibit A. DD Form 149, dated 23 Apr 12. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 23 Jul 12. Exhibit D. Letter, SAF/MRBR, dated 3 Aug 12.