RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2013-03229 COUNSEL: NONE HEARING DESIRED: YES ________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded. ________________________________________________________________ APPLICANT CONTENDS THAT: He enlisted for four years and had excellent service prior to his conviction. His punishment was unjust and has greatly affected his life. The applicant’s complete submission is at Exhibit A. ________________________________________________________________ STATEMENT OF FACTS: On 27 May 1981, the applicant entered the Regular Air Force. On 13 May 1986, he was separated with a BCD. He served 4 years, 10 months and 7 days of active service. Pursuant to the Board's request, the Air Force Office of Special Investigation determined a criminal record does exist. On 7 Apr 2014, a request for post-service information was forwarded to the applicant for review and comment within 30 days. As of this date, no response has been received by this office. (Exhibit C). ________________________________________________________________ AIR FORCE EVALUATION: AFLOA/JAJM recommends denial. JAJM states that upgrading the applicant’s BCD is not appropriate and recommends the Board deny the request as untimely or on the merits. 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 1985. The application for correction of military records was received on 8 Jul 2013. The application is untimely. On 30 Nov 1984, the applicant was found guilty by general court- martial of committing perjury while testifying under oath at an 18 July 1984 court-martial, a violation of Article 131, Uniform Code of Military Justice (UCMJ). The applicant was sentenced to confinement at hard labor for seven months, forfeiture of $200.00 per month for seven months and reduced to the grade of airman basic. On 11 Mar 1985, the applicant was tried and convicted at a special court-martial. He pled guilty to and was found guilty of wrongfully using cocaine and marijuana in violation of Article 134, UCMJ. A military judge sentenced him to be discharged from the Air Force with a BCD, confined for 30 days, and to forfeit $200.00 pay per month for two months. The convening authority later remitted the confinement and forfeitures, but the BCD was approved and executed. At the time of the 11 Mar 1985 special court-martial, the applicant was still serving confinement time from the previous court-martial. The military judge explained the elements and definitions of the offenses to which the applicant pled guilty, and the applicant explained in his own words why he believed he was guilty. The court received evidence in aggravation, as well as in extenuation and mitigation, prior to crafting an appropriate sentence for the crime committed. The court-martial took all of these factors into consideration when imposing the applicant's sentence. Rule for Courts-Martial 1003(b) (8) (c) states that a BCD "is designed as punishment for bad-conduct." It also indicates that a bad conduct discharge 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 well within legal limits. This discharge characterization was and continues to be part of a proper sentence and properly characterizes his service. The complete JAJM evaluation is at Exhibit C. ________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: He was not aware his application was untimely. While JAJM states that a BCD is for bad conduct and more than merely a service characterization, all his charges stemmed from one incident. This incident was not consistent with his character, job performance and career pursuits. His duty performance was above average; he became a noncommissioned officer and wanted to become a commissioned officer. A reduction in rank, fine and BCD for an isolated incident is obviously excessive, unfair and vindictive. ? His complete response is at Exhibit E. ________________________________________________________________ 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 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. 4. The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ 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 BC-2013- 03229 in Executive Session on 6 May 2014, under the provisions of AFI 36-2603: , Panel Chair , Member , Member The following documentary evidence was considered: Exhibit A. DD Form 149, dated 6 Jun 2013. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, AFBCMR, digitally signed 4 Apr 2014, w/atch. Exhibit D. Letter, AFLOA/JAJM, dated 9 Sep 2013. Exhibit E. Letter, SAF/MRBR, dated 19 Sep 2013. Exhibit F. Letter, Applicant, dated 30 Sep 2013. Panel Chair 1