RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-02190

XXXXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXXX

	HEARING: YES

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be upgraded to honorable.

APPLICANT CONTENDS THAT:

He is innocent of the charges that were brought against him that formed the basis of his non-judicial punishment action, which he turned down in order to elect trial by court-martial.  He received ineffective legal counsel, which ultimately led to a discharge that he never deserved.  He was proud to serve his country, was an exceptional performer, and had an outstanding military record.  After serving with distinction, bearing this type of discharge, along with a notation that the discharge was requested in lieu of trial by court-martial, is unjust.  The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant entered the Regular Air Force on 30 December 1980.

After consulting with counsel, the applicant submitted an undated request to his commander asking to be discharged in lieu of trial by court-martial.

On 29 November 1991, the applicant’s commander recommended that the applicant’s request for discharge be approved as a general (under honorable conditions) discharge.  On 9 December 1991, the special court-martial convening authority agreed. 

On 13 December 1991, the staff judge advocate found the discharge legally sufficient and recommended the applicant’s request for discharge in lieu of trial by court-martial under the provisions of AFR 39-10, Administrative Separation of Airmen, be approved and the applicant be separated with a general (under honorable conditions) character of service.  The discharge authority approved the recommendation on 19 December 1991.

On 10 January 1992, the applicant received a general (under honorable conditions) discharge.

On 17 October 2017, following standard procedure, the Board sent the applicant a request for post-service information, including a criminal history report (Exhibit C); as of this date, the Board has received no response.

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit D.

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denying the application based on the merits.  There is no evidence or allegation of error or injustice that tends to undermine the legality of the non-judicial punishment (NJP) that the applicant’s commander offered to the applicant, or the applicant’s decision to turn down the NJP and elect trial by court-martial.  The complete advisory is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 27 June 2018 for comment (Exhibit E), but has received no response.

THE BOARD CONCLUDES THAT:

1.  The application was not timely filed.

2.  The applicant exhausted all available avenues of non-judicial relief before applying to the Board.

3.  After thoroughly reviewing all Exhibits, it is the Board’s opinion that the applicant is not the victim of an error or injustice.  The Board finds that a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also notes the applicant did not file the application within three years after the applicant discovered the alleged error or injustice, as required by Title 10, United States Code, Section 1552, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  Moreover, the applicant has offered no plausible reason for the delay in filing the application.  The Board considered relief based on clemency, but in the absence of post-service information from the applicant, including the requested criminal history, the Board finds no sound basis for such relief.  Without a basis for relief, there is no reason to waive the statutory time limit for applying to the Board; thus, the Board finds the application untimely and concludes it would not be in the interest of justice to excuse the delay.  Therefore, the Board recommends against correcting the applicant’s records.

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 the Board’s understanding of the issues involved.

THE BOARD RECOMMENDS THAT:

The applicant be informed the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

CERTIFICATION:

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2017-02190 in Executive Session on 2 August 2018:

, Panel Chair
, Panel Member
, Panel Member

All members voted not to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 20 April 2017.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Post Service Clemency Letter, w/atch, SAF/MRBC, dated 17 October 2017.
Exhibit D:	Advisory opinion, AFLOA/JAJM, dated 6 June 2018.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 27 June 2018.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9.