RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-02696 COUNSEL: NONE HEARING DESIRED: NO _________________________________________________________________ APPLICANT REQUESTS THAT: 1. His Bad Conduct Discharge (BCD) be upgraded to general (under honorable conditions). 2. His Reenlistment (RE) code of 2L which denotes “Civil Court charges pending for an offense for which the Manual for Courts- Martial authorizes confinement for the same or most closely related offense or court-martial charges have been preferred, or court-martial action is under appellate review” be changed to allow him to reenlist in the Air Force. _________________________________________________________________ APPLICANT CONTENDS THAT: He is working his way towards an honorable discharge. He made a mistake while on active duty; however, his service was nothing but honorable. He has been unable to secure employment due to the characterization of his discharge. He needs his discharge upgrade so he can move on with his life. His reenlistment of 19 Oct 09, does not appear to be reflected on his DD Form 214, Certificate of Release or Discharge from Active Duty. In support of his appeal, the applicant provides copies of his DD Form 214 and DD Form 4/1, Enlistment/Reenlistment Document Armed Forces of the United States. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 9 Dec 03, the applicant enlisted in the Regular Air Force. On or about 14 Jan 06, the applicant unlawfully pushed, grabbed, struck, and dragged an airman by pushing her away from him, grabbing her right arm to throw her out of the room leaving a mark on her right arm, striking her upper left arm, and dragging her out of the room leaving rug burns on her left elbow in violation of Article 128, Uniform Code of Military Justice (UCMJ). For this misconduct, he received an Article 15, UCMJ, suspended reduction in grade from airman first class to airman, suspended forfeiture of $500.00 pay, restriction to the limits of Scott Air Force Base for 30 days, 14 days extra duty and a reprimand. On 1 Nov 10, the applicant was tried by General Court-Martial for possessing and receiving images and videos of child pornography in violation of Article 134, UCMJ. He was sentenced to a BCD discharge, reduction in grade from senior airman to airman basic, confinement for 10 months and forfeiture of $1,000.00 pay per month for 10 months. On 5 Jan 11, the convening authority approved only so much of the sentence that provided for confinement for 10 months, reduction in grade to airman basic and a BCD discharge. Pursuant to Article 57, UCMJ all of the adjudged forfeitures were deferred from 15 Nov 10 until 5 Jan 11. Pursuant to Article 58, UCMJ all of the mandatory automatic forfeitures were waived for a period of six months or release from confinement, whichever was sooner, with the waiver commencing on 15 Nov 10. The total pay and allowances were directed to be paid to the applicant’s spouse for the benefit of his dependents. On 27 Jun 12, the convening authority ordered the applicant’s BCD to be executed. On 5 Oct 12, the applicant was discharged in the grade of airman basic. He served 8 years, 1 month and 26 days of total active service. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSOR recommends denial of the applicant’s request to change his characterization of service. The documentation on file in the applicant’s master personnel record supports the basis for discharge. The discharge was consistent with the procedural and substantive requirements of the discharge instruction and was within the discretion of the discharge authority. The applicant did not provide any evidence of an error or injustice that occurred in the discharge processing. The complete DPSOR evaluation is at Exhibit C. AFPC/DPSOA recommends denial of the applicant’s request to change his RE code. The applicant received an erroneous RE code of 2L. His RE code should have been updated to 2B--“Separated with a general or Under-Other-Than-Honorable- Conditions (UOTHC) discharge” at the time of separation, based on his BCD. RE code 2B is required per AFI 36-2606, Reenlistments in the United States Air Force, based on his involuntary discharge with BCD character of service. The applicant does not provide any proof of an error or injustice in reference to his RE code 2B, but wants a RE code that will allow him to reenter the military. AFPC/DPSOY will provide the applicant with a corrected copy of his DD Form 214 with a RE code of 2B, unless otherwise directed by the Board. The complete DPSOA evaluation, with attachment, is at Exhibit D. AFLOA/JAJM recommends denial of the applicant’s request to upgrade his BCD. On 29 Mar 12, the United States Air Force Court of Criminal Appeals concluded that the approved findings and sentence were correct in law and that there is no error prejudicial to the substantial rights of the applicant. The complete JAJM evaluation is at Exhibit E. _________________________________________________________________ APPLICANT’S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluations were forwarded to the applicant on 6 Dec 13, for review and comment within 30 days (Exhibit F). 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 timely filed. 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. Regarding his request to change his RE code, we note that DPSOA states his RE code was recorded in error and we agree with their recommendation to administratively change it to “2B”. Additionally, we note that the applicant states that his 19 Oct 09, reenlistment does not appear on his DD Form 214. He is correct as the DD Form 214 is not the proper source document for reenlistment data. Therefore, aside from the administrative correction we find no basis to grant additional relief. In view of the above and in the absence of evidence to the contrary, we find no basis to recommend granting the relief sought in this application. ______________________________________________________________ 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-2013-02696 in Executive Session on 13 Mar 14, 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 13. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 15 Jul 13. Exhibit D. Letter, AFPC/DPSOA, dated 15 Aug 13, w/atch. Exhibit E. Letter, AFLOA/JAJM, dated 6 Nov 13. Exhibit F. Letter, SAF/MRBR, dated 6 Dec 13. Panel Chair 1