RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2019-04062

XXXXXXXXXXXXX  	COUNSEL: NONE	 

  		HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board grant relief from his court-martial sentence and his bad conduct (BCD) be upgraded to a general discharge.  

APPLICANT’S CONTENTIONS

He was discharged for using his girlfriend’s calling card; however, she had given him permission to use it as long as he paid her back.  However, she claimed he used it illegally after they had broken up.  The attorneys agreed to a guilty plea with a general discharge; however, the judge gave him a BCD.  He has paid his debt to society and it has been 20 years since his discharge.  

The applicant’s complete submission is at Exhibit A.

APPLICABLE AUTHORITY

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), actions by this Board are limited to corrections reflecting actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).  

AF Form 3070, Record of Nonjudicial Punishment Proceedings, dated 7 Sep 95, shows the applicant received an Article 15 for continued substandard behavior and was placed on the control roster.

On 25 Apr 96, the applicant received a letter of reprimand (LOR) for unlawfully entering a dormitory room of two female airmen.

The applicant received a referral enlisted performance report (EPR) for the reporting period ending 20 May 96.  The EPR stated he lacked initiative and required routine reminders on accomplishing daily tasks.

Per Special Order Number 20, dated 8 Apr 97, he pled guilty and was found guilty of one charge, two specifications of using a calling card belonging to another airman with intent to defraud and wrongfully obtained, value of less than $100.  The sentence adjudged on 6 Mar 97 included confinement for two months and a BCD.

On 16 Apr 98, he was discharged with a BCD and a narrative reason for separation of “Misconduct.”  He served 3 years, 3 months and 16 days of active duty service.   

POST-SERVICE INFORMATION

The applicant provides a Federal Bureau of Investigation (FBI) background check dated 16 Oct 19, which shows a warrant issued for intimidation (includes stalking) on 25 Sep 17, charge of assault or attempted assault of first degree and burglary second degree on 28 Sep 17 and incarceration on 17 Dec 18.  

FINDINGS AND CONCLUSION

1.  The application is timely.  Given the requirement for passage of time, all clemency requests are technically untimely.  However, it would be illogical to deny a clemency application as untimely, since the Board typically looks for over 15 years of good conduct post-service.  Therefore, the Board declines to assert the three-year limitations period established by 10 U.S.C. § 1552(b).

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

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an injustice.  The Board finds no evidence that the sentence of the military court was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice.  The Board also considered the passage of time, the overall quality of the applicant’s service, the seriousness of the offenses committed, and the applicant’s post-service conduct.  However, the Board finds no basis for clemency in the case.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

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-2019-04062 in Executive Session on 22 Oct 20:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 30 Oct 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs, dated 10 Sep 19.  
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.