RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02617 COUNSEL: NONE HEARING DESIRED: NO ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded. ________________________________________________________________ APPLICANT CONTENDS THAT: He was court-martialed for writing bad checks but even Congress writes bad checks. According to the Constitution, no law can be passed unless it is equally enforced. The applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 22 Jan 1980, the applicant entered active duty. On 9 Mar 1981, he was convicted by General Court-Martial for writing bad checks (30 specifications), disobeying a lawful order and writing bad checks with intent to defraud (four specifications) in violation of Articles 91, 123a and 134, Uniform Code of Military Justice (UCMJ). He was sentenced to 20 months confinement at hard labor, forfeiture of $300 per month for 20 months and to be discharged from the service with a BCD. On 11 Dec 1981, the convening authority approved only so much of the sentence as provided for a BCD, confinement at hard labor for 16 months and forfeiture of $300 per month for 16 months. On 5 Mar 1982, the applicant was discharged with a BCD and a narrative reason for separation of “Conviction by Court-Martial, Other than Desertion.” On 23 Jan 2014, the BCMR staff provided the applicant an opportunity to provide information pertaining to his activities since leaving the service. As of this date, this office has not received a response. ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial of the applicant’s request. JAJM states under Title 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 1950 (the effective date of the UCMJ). The applicant argues that Congress writes bad checks and under the Constitution, laws should be applied equally. Article 123a, UCMJ has not been found unconstitutional and remains legally valid; therefore, there appears to be no legal merit to the applicant’s argument. The applicant alleges no error in the processing of the court-martial conviction against him. There are no apparent errors or injustice that would warrant upgrading the applicant’s BCD. The rule for courts-martial states that a BCD is designed as punishment for bad-conduct. It also indicates that a BCD is more than merely a service characterization; it is a punishment for the crimes the applicant committed while a member of the armed forces. The applicant’s sentence to a BCD was within legal limits. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: On 6 Sep 2013, a copy of the Air Force evaluation was forwarded to the applicant 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 and the lack of post service information, 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- 2013-02617 in Executive Session on 25 Mar 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 28 May 2013. Exhibit B. Applicant’s Master Personnel Records. Exhibit C. Letter, AFLOA/JAJM, dated 19 Aug 2013. Exhibit D. Letter, SAF/MRBR, dated 6 Sep 2013. Exhibit E. Letter, BCMR, dated 23 Jan 2014, w/atch. Panel Chair 1