RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2019-04789

		COUNSEL:  NONE

		HEARING REQUESTED:  NO

APPLICANT’S REQUEST

His Bad Conduct Discharge (BCD) be upgraded to an under honorable conditions (General) discharge.

APPLICANT’S CONTENTIONS

He was court-martialed for wrongful use of three controlled substances and was sentenced to six months confinement.  He was not charged with possession, manufacturing, selling, distribution, of any drugs.  He did not endanger any other military member, violate security protocol or commit any serious offense.  He never let his personal actions affect his ability to perform and his former commander characterized his service as “outstanding overall.”  Since his release, he has been home working hard to build a secure foundation for his future.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 25 November 2014, the applicant entered the Regular Air Force.

The DD Form 458, Charge Sheet, dated 11 May 2016 provided by the applicant, indicate he was charged with three specifications for wrongful use of 3,4-methylenedioxymethampthetamine, lysergic acid diethylamide and marijuana.

On 14 September 2018, he was discharged with a BCD and was credited with 3 years, 4 months and 27 days of active service.

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

AIR FORCE EVALUATION

AFLOA/JAJM recommends denying the application.  There is no evidence of an error or an injustice.  In accordance with 10 U.S.C. §1552(f), the Board has no authority to overturn the court-martial conviction, but may adjust the sentence on the basis of clemency.  The approved sentence was within the permissible range for the offenses of which the applicant was convicted.  The applicant has not submitted any new evidence or information that casts doubt on the outcome of his trial.  Therefore, we find no basis to set aside the sentence adjudged at the applicant’s court-martial.

On 22 June 2016, a general court-martial of a military judge sitting alone found the applicant guilty, in accordance with his pleas and pursuant to a pretrial agreement, of wrongfully using methylenedioxymethamphetamine (MDMA), lysergic acid diethylamide (LSD), and marijuana, in violation of Article 112a, Uniform Code of Military Justice (UCMJ); and wrongfully endeavoring to impede his urinalysis inspection by submitting urine from a flask rather than his body, in violation of Article 134, UCMJ.  As the Air Force Court of Criminal Appeals (AFCCA) noted:

The applicant was sentenced to a BCD, confinement for six months, forfeiture of all pay and allowances, and reduction to E-1.  On 29 August 2016, the convening authority approved the adjudged findings and sentence, consistent with the terms of the pretrial agreement.  On 28 April 2017, the AFCCA returned the case for new post-trial processing because of an erroneous staff judge advocate’s recommendation.  After the error was resolved, the AFCCA affirmed the approved findings and sentence on 8 September 2017.

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 9 April 2020 for comment (Exhibit D), but has received no response.

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-2019-04789 in Executive Session on 5 August 2020:

, 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 25 September 2019.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFLOA/JAJM, dated 1 April 2020.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 9 April 2020.

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.