RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-02634 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His bad conduct discharge be upgraded. ________________________________________________________________ APPLICANT CONTENDS THAT: He proudly served in support of Operation DESERT SHIELD/STORM. He received many awards and citations in the performance of his job as the record indicates. Since leaving the Air Force, he has had difficulties and has made mistakes that have cost him things that are very important to him. He has overcome those problems and lives a stable healthy life. Nothing has been more devastating to him than having a bad conduct discharge. There are times when he looks back over his military career and the time he spent in Saudi Arabia and feels sad and unfulfilled because he is not able to fully participate in the Veteran’s of America activities. He did not disgrace his country on foreign soil. No matter what happened during that one incident, the actions and dedication to his country cannot be denied. Yes, he is guilty of violating the laws that govern the Armed Forces, but he fully participated in the investigation and served eight months in confinement. What more humiliation could one person suffer than to be the darling of the base on one day and have to march to chow under guard with the shadow of where he once wore his rank. He now has a daughter that graduated from college and two more children working towards their degrees. He also has a granddaughter on the way. He truly wishes to take his grandchild to a Veterans Hall and show her how her grandfather was a part of a long line of Americans who were willing to give their lives in order for others to be free. He asks that this punishment end so that he can celebrate his military career with honor. The applicant’s complete submission, with attachment, is at Exhibit A. STATEMENT OF FACTS: The applicant enlisted in the regular Air Force on 17 December 1987. Pursuant to his pleas, he was convicted by a general court-martial of wrongfully using cocaine; and wrongful use of marijuana, in violation of Article 112a, Uniform Code of Military Justice (UCMJ). He was sentenced to a bad conduct discharge, confinement for 10 months, forfeiture of all pay and allowances and reduction to the grade of airman basic. Only so much of the sentence that provided for a bad conduct discharge, confinement of eight months, forfeiture of all pay and allowances and reduction to the grade of airman basic was approved. He was discharged 22 October 1992 with a bad conduct discharge. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. Title 10 U.S.C 1552(f) limits the Boards ability to correct court-martial records. Specifically, it permits the correction of a record to reflect actions taken by a reviewing authority and 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 Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred after 5 May 1950. The applicant alleges no error in his court-martial. Based on the applicant’s submission and the Automated Military Justice Analysis and Management System, there is no apparent error or injustice in how the court-martial was conducted. The applicant pled guilty at the trial to the charge and specifications. In cases which include guilty pleas, the military judge will ensure the accused understands the meaning and effect of his plea and the maximum punishment that could be imposed if his guilty plea is accepted by the court. The military judge will then explain the elements and definitions and have the accused explain in their own words why they are guilty. On the courts acceptance of the guilty plea, it will receive evidence in aggravation, as well, as extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The sentencing authority will then take all of these factors into consideration when imposing the sentence. The applicant’s sentence was well below the maximum allowable sentence which could have included a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances, and a reduction to the lowest enlisted grade. Moreover, the applicant was granted two months mitigation of his sentence to confinement by the general court- martial convening authority. Clemency in this case, in the form of upgrading the discharge characterization would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veteran’s 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 are barred when the veteran was discharged or dismissed by reason of the sentence of a general court-martial. Upgrading the applicant’s discharge is not appropriate. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: In a three-page statement, the applicant offers background information to his activities surrounding his enlistment into the Air Force, as well as the challenges he faced as a young husband and father. He explains how he used illegal drugs as an escape and he knows that was wrong. He received a letter that said it would be unfair to give him the same benefits as other veterans who served honorably. This is true except that he served honorably in a time of war and endured the same personal sacrifices, faced the same hostile enemies and financial hardships. He prays that his service to his country means something. He has lived with this dishonor for over 20 years, and believes that his has paid his debt to the military. The applicant’s complete response, with attachment, is at 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 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). We have considered the applicant's overall quality of service, the court-martial conviction which precipitated the discharge, the seriousness of the offenses to which convicted, and the absence of any documentation pertaining to his post-service activities. Based on the evidence of record, 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 AFBCMR Docket Number BC-2012-02634 in Executive Session on 15 February 2013, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, undated, w/atch. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 18 Oct 12. Exhibit D. Letter, SAF/MRBR, dated 30 Oct 12. Exhibit E. Letter, SAF/MRBC, dated 12 Dec 12. Exhibit E. Applicant’s Response, dated 7 Jan 13, w/atchs.