RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-05572 COUNSEL: NO HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded so that he may receive medical benefits. ________________________________________________________________ APPLICANT CONTENDS THAT: He was misled and misrepresented by his defense counsel. He was overpaid by the Air Force and for three months he received no money in his paycheck due to the Air Force taking the money for repayment. Due to this, he was unable to pay his bills and support his family. He was advised by his commander to go to Air Force Aid and Red Cross for assistance but he did not qualify because he was not married. Because of this, he made the bad choice to distribute marijuana. The applicant’s complete submission, with attachments, is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: The applicant’s military personnel records indicate he enlisted in the Air Force Reserve on 28 Mar 79 in the Delayed Entry Program and entered the Regular Air Force on 9 Jan 84. On 10 Apr 85, the applicant pled guilty and was found guilty of three specifications of wrongful distribution of marijuana, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), and was sentenced at a Special Court-Martial to a BCD, confinement for three months, forfeiture of $413 pay per month for three months, and a reduction to the grade of airman basic (E-1). On 10 May 85, the convening authority approved the finding and sentence. On 20 Jun 85, the Air Force Court of Criminal Appeals approved the finding of guilty and the sentence and the BCD was executed on 19 Jun 86. On 22 Aug 13, a request for post-service information was forwarded to applicant for comment within 30 days. As of this date, no response has been received by this office (Exhibit E). The remaining relevant facts pertaining to this application are described in the letter prepared by the Air Force office of primary responsibility which is attached at Exhibit C. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denying the applicant’s request due to untimeliness or on its merits indicating the applicant has not supplied any evidence of injustice. Also, the applicant alleges no error in the processing of the court-martial conviction nor does his record of trial reflect any errors. The applicant’s sentence was well within legal limits and the BCD is a proper sentence and properly characterizes his service. There is nothing in the record that supports the applicant’s allegation of ineffective counsel. He pled guilty to the charge and specifications and had the opportunity to demand the government prove the offenses against him. He made an unsworn statement on his behalf, admitting that he made a mistake by distributing marijuana. Additionally, the applicant’s application is untimely. An application must be filed within three years after an error or injustice is discovered or, with due diligence, should have been discovered. The court-martial and final action on the case occurred in 1985. A complete copy of the AFLOA/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 24 Feb 13 for review and comment within 30 days. As of this date, no response has been received by this office (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 an 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 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 documentation pertaining to the applicant’s post-service activities. Based on the evidence of record, we cannot conclude that clemency is warranted in this case. Therefore, we find no basis upon which to favorably consider 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-2012-05572 in Executive Session on 7 Oct 13, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence pertaining to AFBCMR Docket Number BC-2012-05572 was considered: Exhibit A. DD Form 149, dated 27 Nov 12. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 19 Feb 13. Exhibit D. Letter, SAF/MRBR, dated 24 Feb 13. Exhibit E. Letter, AFBCMR, dated 22 Aug 13, w/atch. Panel Chair 3