RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-00497 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to a general (under honorable conditions) discharge. _________________________________________________________________ APPLICANT CONTENDS THAT: It has been 22 years since he was discharged for a bad check. He had the funds to cover the check, but forgot to make the deposit. He notified the business of his mistake, and was told they would hold the check until the next morning, however, the manager filed bad check charges against him before he could make the deposit. He has served his punishment long enough and needs his discharge upgraded to obtain a government job related to his military training and a security clearance. In support of his request, the applicant provides a copy of DD Form 293, Application for the Review of Discharge from the Armed Forces of the United States. The applicant’s complete submission, with attachment, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 24 Aug 81, the applicant enlisted in the Regular Air Force. Prior to his court-martial the applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for assault. For this misconduct the applicant received 30 days correctional custody. On 11 May 90, the applicant was tried by a Special Court- Martial. He pled guilty and was found guilty of one charge and four specifications of uttering four separate worthless checks totaling $240.00 in violation of Article 134, UCMJ. He pled not guilty but was found guilty of two specifications of uttering two separate worthless checks totaling $300.00, in violation of Article 134, UCMJ. He was sentenced to a BCD, confinement for 45 days, and reduction in grade to airman basic. On 31 May 90, the convening authority approved the findings and sentence. On 2 Aug 90, the Air Force Court of Criminal Appeals affirmed the approved findings and sentence. On 28 Nov 90, the United States Court of Appeals for the Armed Forces denied the applicant’s petition for review. On 31 May 91, the applicant’s BCD was ordered to be executed. He served nine years, nine months and seven days of active duty service. On 21 Sep 92, the applicant applied for a review of his BCD to the Air Force Discharge Review Board (AFDRB). On 13 Jan 94, the AFDRB considered and denied the applicant’s appeal. On 8 Feb 94, the applicant was notified of the AFDRB’s decision. On 6 Sep 13, the AFBCMR staff offered the applicant an opportunity to provide information pertaining to his activities since leaving the service (Exhibit E). As of this date, no response has been received by this office. _________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that the applicant alleges no error in the processing of the court-martial conviction against him and his record of trial shows no error in the processing of the court-martial. At his court-martial, the applicant pled guilty to several bad check specifications and was found guilty. He pled not guilty to, but was found guilty of writing two additional bad checks. The court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crimes committed. The applicant made an unsworn statement on his behalf asking for leniency and for a BCD in lieu of confinement. A BCD was and continues to be part of a proper sentence and properly characterizes his service. Granting clemency in this case, in the form of upgrading his discharge characterization, 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 while on active duty. 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 20 Apr 13, for review and comment within 30 days (Exhibit D). As of this date, this office has not received a response. _________________________________________________________________ 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 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), 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 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, 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 Docket Number BC-2013-00497 in Executive Session on 15 Oct 13, under the provisions of AFI 36-2603: Panel Chair Member Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 21 Jan 12, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 4 Apr 13. Exhibit D. Letter, SAF/MRBR, dated 20 Apr 13. Exhibit E. Letter, AFBCMR, dated 6 Sep 13. 1 2