RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2017-05114

	COUNSEL: NONE

	HEARING: NO

APPLICANT REQUESTS THAT:

Her under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

APPLICANT CONTENDS THAT:

She served her country for a total of 16 years and served with honor and distinction for 15 of those 16 years.  She was a Registered Nurse (RN) while serving in the Air Force and became addicted to prescription pain medicine, and began diverting medications from the hospital that she was assigned.  She takes full responsibility for her actions.  She has been clean and sober since September 2012.  She completed a drug rehabilitation program in April 2013.  She pled guilty at a general court-martial, was sentenced to prison time, and then was dismissed.  

In May 2015, she was granted clemency and the Secretary of the Air Force (SECAF) upgraded her discharge to UOTHC.  She worked hard and was successful in getting her nursing license back.  She currently works in the Intensive Care Unit (ICU) and was promoted to House Supervisor, which means she supervises all nurses on staff at the hospital.

If her request were approved, she would like to use her education benefits to go back to school to finish her master’s degree in Addiction Counseling.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS:

On 2 Nov 97, the applicant initially entered active duty in the Regular Air Force.  

On 6 Dec 13, the convening authority published General Court-Martial Order No. 1.  The Order states the applicant pled guilty to the following charges:

	Charge 1:  Five specifications of possessing Schedule II controlled substances (Article 
		     112a of the Uniformed Code of Military Justice (UCMJ)).
	Charge 2:  Three specifications of stealing Schedule II controlled substances (Article 21 of the UCMJ).

The applicant was found guilty of all charges and specifications for which her sentence consisted of 30 days of confinement and a dismissal.  The sentence was approved and, except for the dismissal, the sentence was executed.  All of the mandatory forfeitures were deferred 14 days from the date the sentence was adjudged.  The service of the sentence to confinement was deferred on 6 Nov 13 until 7 Nov 13.  The term of confinement having been served, no place of confinement was designated.  

According to General Court-Martial Order No. 10, dated 9 May 15, the SECAF approved the sentence and ordered the dismissal to be executed, but pursuant to Article 74(b), Uniformed Code of Military Justice (UCMJ), substituted an UOTHC discharge for the dismissal.  The sentence was adjudged as promulgated in General Court-Martial Order No. 1, dated 6 Dec 13.  

On 29 May 15, the applicant received a UOTHC discharge in the grade of major after serving 17 years, 6 months, and 2 days of active service.

The Board sent a copy of the Clemency Bulletin to the applicant on 10 Dec 17 for comment (Exhibit C).   In response, the applicant provides a copy of her FBI report, effective 2 Apr 18, which reflects her court-martial charges and findings.

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

AIR FORCE EVALUATION:

SAF/MRBP does not provide a recommendation due to the fact that the applicant did not apply to the Air Force Discharge Review Board (AFDRB).  Further, her case cannot be considered by the AFDRB since she was dismissed following a General Court-Martial conviction.  The only type of punitive discharges the DRB can consider for possible upgrade are Bad Conduct Discharges (BCD) adjudged through a Special Court-Martial.  

The complete advisory is at Exhibit D.

AFLOA/JAJM recommends denying the application.  JAJM found no legal basis to set aside applicant’s general court-martial sentence.  Whether the BCMR should set aside the sentence as a matter of clemency is within the purview of the BCMR.  

By way of background, in a court-martial, after an accused is found guilty of charged offenses, the court enters the sentencing phase.  During this portion of the trial, the government presents evidence of the past conduct, performance, and duty history of the accused, and any matters in aggravation that make the accused’s offenses more severe than other instances of similar misconduct.  The accused is then given the opportunity, through military defense counsel, to rebut any evidence presented by the government and to submit any evidence in extenuation and mitigation that tend to diminish the severity of her offenses.  The accused’s presentation of evidence during the sentencing portion of a court-martial is not subject to the Military Rules of Evidence, and is largely unfettered.  It is with a full picture of the accused’s duty history, the aggravating circumstances of the crime, and any extenuating or mitigating evidence presented by the accused that the court-martial fashions an appropriate sentence. 

In accordance with 10 U.S.C. §1552(f), the BCMR has no authority to overturn the court-martial conviction, but may, on the basis of clemency, adjust the sentence.  However, the applicant has not submitted any new evidence or information that casts doubt on the outcome of her trial.  The sentence adjudged and approved by the convening authority, as affirmed by the Air Force Court of Criminal Appeals, was within the permissible range for the offenses of which applicant was convicted.  The applicant’s general court-martial action and order was reviewed; however, JAJM finds no basis to set it aside.  Further, the applicant already received relief from the SECAF through Article 74(b), UCMJ.  Whether the applicant’s sentence should be further modified as a matter of clemency is within the purview of the BCMR. 

The complete advisory is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The Board sent a copy of the Air Force evaluation to the applicant on 30 Aug 18 for comment (Exhibit E), and the applicant replied in an undated response.  In her response, she provides letters of support, a copy of her FBI report, and excerpts from her master personnel records.  

The applicant’s complete response is at Exhibit F.

THE BOARD CONCLUDES THAT:

1.  The application was 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 injustice.  It appears the discharge was consistent with the substantive requirements of the discharge regulation and was within the commander’s discretion.  Nor was the discharge unduly harsh or disproportionate to the offenses committed.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, given the evidence presented, the Board finds no basis to do so.  Therefore, the Board recommends against correcting the applicant’s records.

THE BOARD RECOMMENDS THAT:

The applicant be informed the evidence did not demonstrate material error or injustice, 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-2017-05114 in Executive Session on 13 Sep 18:

, 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 14 Nov 17.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Advisory opinion, SAF/MRBP, dated 2 Mar 18.
Exhibit D:	Advisory opinion, AFLOA/JAJM, dated 25 Jun 18.
Exhibit E:	Notification of Advisory, SAF/MRBC to applicant, dated 30 Aug 18.
Exhibit F:	Applicant’s response, undated.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings required by AFI 36-2603, paragraph 4.11.9 pertaining to Docket Number BC-2017-05114.