RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-03053 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded. ________________________________________________________________ APPLICANT CONTENDS THAT: His drug addiction was a disease and he should have been afforded the opportunity for treatment or rehabilitation rather than being court-martialed. It is unfair that he is being made to suffer the effects of the BCD for the rest of his life. The incident in 1982 seems to have overshadowed his honorable service between 1976 and 1980. An upgrade would entitle him to Department of Veterans Affairs (DVA) benefits. The DVA advised him to apply for a discharge upgrade based on his successful drug and alcohol treatment. The applicant’s complete submission, with attachment, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant entered the Regular Air Force on 14 Jan 1976, and was honorably discharged on 13 Jan 1980. He served four years of active duty. On 2 Apr 1981, the applicant re-enlisted in the Regular Air Force. On 1 Mar 1983, he was separated with a BCD. He served 1 year, 2 months and 29 days of active service. On 25 Jan 2013, a request for post-service information was forwarded to the applicant for review and comment within 30 days (Exhibit E), as of this date, no response has been received by this office. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states upgrading the applicant’s BCD is not appropriate and recommends the Board deny the request as untimely or on the merits. JAJM states that ordinarily, an applicant must file an application within three years after an error or injustice is discovered or, with due diligence, should have been discovered. His court-martial took place in 1982 and the final action on his discharge was taken in 1983. The application is untimely. On 28 Jun 1982, the applicant, then a sergeant (Sgt, E-4) pled guilty to two specifications of wrongfully using marijuana, one specification of wrongfully transferring marijuana, and one specification of wrongfully possessing marijuana, all in violation of Article 134, Uniform Code of Military Justice (UCMJ). He was convicted by a special court-martial for using marijuana on two separate occasions, of wrongfully transferring marijuana, and of wrongfully possessing marijuana, in accordance with his guilty plea. He was sentenced to a BCD, confinement at hard labor for 5 months and 15 days, forfeiture of $250.00 pay per month for 5 months, and a reduction to the grade of E-1. On 17 Sep 1982, the Air Force Court of Military Review approved and affirmed the findings and sentence. The United States Court of Military Appeals denied the applicant’s petition to review the Air Force Court of Military Review's decision making the findings and sentence in his case final and conclusive under the UCMJ. As a result, a BCD was ordered to be executed on 25 Jan 1983. The applicant offers no allegation of injustice. He simply requests an upgrade to his BCD because he was suffering from an addiction to alcohol and drugs and consequently should have been afforded the opportunity for treatment or rehabilitation. He states that his life has been haunted by his BCD and that since he committed the offenses, he has been cured of his addiction to drugs and alcohol. He alleges no error in the processing of the special court-martial conviction against him and his record of trial shows no error in the processing of the court-martial. In addition, he pled guilty at trial. Prior to accepting the applicant's guilty plea, the military judge asked him a series of questions. In response, he admitted to using marijuana and providing marijuana to his friends. At no time did he allege that his actions were a result of an addiction to drugs or alcohol. The applicant, who was represented by military counsel, had the opportunity to demand the government prove the offenses against him. The court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The court-martial took all of these factors into consideration when imposing his sentence. After his court-martial, he had an opportunity to present matters in clemency to the convening authority. He failed to allege that he was addicted to drugs and alcohol and at no time did he ask for treatment or rehabilitation. 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 the sentence of a general court-martial. This makes sense if the benefit program is to have any real value. It would be offensive to all those who served honorably to extend the same benefits to someone who committed crimes such as the applicant’s while on active duty. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 22 Sep 2012, 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 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). 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 offenses of which convicted, and noting the lack of 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 7 Mar 2013, under the provisions of AFI 36-2603: XXXXXXX, Panel Chair XXXXXXX, Member XXXXXXX, Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 18 Jun 2012, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 17 Sep 2012. Exhibit D. Letter, SAF/MRBR, dated 25 Sep 2012. Exhibit E. Letter, AFBCMR, dated 25 Jan 2013, w/atch.