RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-03621 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: His life style has changed for the better since being discharged from the service. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant initially entered the Regular Air Force on 19 April 1989. On 31 August 1999, the applicant was tried by a general court- martial for the wrongful use of methamphetamine, in violation of Article 112a, Uniform Code of Military Justice (UCMJ), and for violating a lawful order, in violation of Article 92, UCMJ. He was found guilty and sentenced to a BCD, seven months confinement, and a reduction in grade from staff sergeant (E-5) to the grade of airman basic (E-1). On 12 November 1999, the convening authority approved the sentence as adjudged. On 20 March 2001, the Air Force Court of Criminal Appeals affirmed the findings and sentence. On 21 May 2001, the applicant petitioned the Court of Appeal for the Armed Forces (CAAF) for review and his request was denied. On 22 August 2001, the applicant was furnished a bad conduct discharge, and was credited with 12 years, 4 months, and 3 days of active service. On 8 October 2014, a request for information pertaining to his post-service activities was forwarded to the applicant for review and response within 30 days (Exhibit C). The applicant provided a copy of a Federal Bureau of Investigation (FBI) report (Exhibit D). AIR FORCE EVALUATION: AFLOA/JAJM recommends denial indicating there is no evidence of an error or an injustice. The punishment adjudged by a military judge and approved by the convening authority was within the range of permissible punishments. The applicant was afforded all his appellate rights. In accordance with 10 USC 1552(f), the Board has no authority to overturn the court-martial conviction but may only on the basis of clemency, correct the actions taken by the reviewing authorities, i.e., the sentence. In this case the applicant submitted several letters as evidence in clemency. While the letters state that the applicant has worked hard at maintaining sobriety and supporting his family — commendable actions directed at appealing to the Board’s sense of equity-- they are not persuasive legal arguments to overturn the decisions of the court. Additionally, 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. The applicant’s courts-martial occurred in 1999 with final action in 2001. Therefore, this application is untimely. A complete copy of the AFLOA/JAJM evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: A copy of the Air Force evaluation was forwarded to the applicant on 17 February 2015 for review and comment within 30 days (Exhibit F). As of this date, no response has been received by this office. 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 took notice of the applicant's complete submission in judging the merits of the case; however, the Board finds no evidence of an error or injustice occurred in the discharge processing. Based on the available evidence of record, it appears the discharge was consistent with the substantive requirements of the discharge regulation and within the commander’s discretionary authority. The applicant has provided no evidence which would lead us to believe the characterization of the service was contrary to the provisions of the governing regulation, unduly harsh, or disproportionate to the offenses committed. In the interest of justice, we considered upgrading the discharge based on clemency; however, based on the evidence before us, the Board finds no basis to grant clemency at this time. However, the Board would be willing to reconsider his appeal should he provide new and relevant information relative to his claim. Therefore, in the absence of evidence to the contrary, the Board finds no basis upon which to recommend granting the relief sought in this application. THE BOARD DETERMINES THAT: The applicant be notified the evidence presented did not demonstrate the existence of an 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-2014-03621 in Executive Session on 28 May 2015 and 19 June 2015, under the provisions of AFI 36-2603: Although chaired the panel, in view of his unavailability, has agreed to sign as Acting Panel Chair. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 3 September 2014, w/atchs. Exhibit B. Applicant’s Available Master Personnel Record. Exhibit C. Letter, SAF/MRBR, dated 8 October 2014. Exhibit D. Federal Bureau of Investigation Report. Exhibit E. Letter, AFLOA/JAJM, dated 19 December 2014. Exhibit F. Letter, SAF/MRBR, dated 17 February 2015.