RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02984

XXXXXXXXXXX	COUNSEL: XXXXXXXXXXXX

(AKA) XXXXXXXXXXXX 	HEARING REQUESTED: NO

APPLICANT’S REQUEST

The Board grant relief from her court-martial sentence by upgrading her bad conduct discharge (BCD) to honorable and changing her narrative reason for separation to “Secretarial Authority.”

APPLICANT’S CONTENTIONS

She takes full responsibility for her actions that led to her discharge.  Since her discharge over 30 years ago, she has worked exceptionally hard to overcome the negative connotations of a BCD by perusing a high level of education and running a successful business.  She has become a pillar of her community and remains extremely dedicated to remaining a productive member to society.

In support of her request for clemency, the applicant provides her resume and numerous character reference letters.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

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

On 14 Oct 87, the convening authority published Special Court-Martial Order Number 1.  The Order stated the applicant pled guilty to one charge and two specifications of wrongful use of an illegal substance, cocaine and marijuana (Article 112a).  The applicant was sentenced to a reduction to the grade of airman basic and discharged from the service with a BCD.

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

POST-SERVICE INFORMATION

On 23 Jan 21, the Board sent the applicant a request for post-service information, including a request for a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 2 Feb 21 (Exhibit D).  According to the report, the applicant was arrested on 1 Feb 01 for check fraud and again on 25 Sep 06 for check fraud.  

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.

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7.

On 23 Jan 21, the Board staff provided the applicant a copy of the clarifying guidance (Exhibit C).

AFI 36-3208, Administrative Separation of Airmen, describes the types of service characterization: 

Honorable.  The quality of the airman’s service generally has met Air Force standards of acceptable conduct and performance of duty or when a member's service is otherwise so meritorious that any other characterization would be inappropriate. 

Under Honorable Conditions (General).  If an airman’s service has been honest and faithful, this characterization is warranted when significant negative aspects of the airman's conduct or performance of duty outweigh positive aspects of the airman's military record.

Under Other than Honorable Conditions.  When basing the reason for separation on a pattern of behavior or one or more acts or omissions that constitute a significant departure from the conduct expected of airmen.  The member must have an opportunity for a hearing by an administrative discharge board or request discharge in lieu of trail by court-martial.  Examples of such behavior, acts, or omissions include, but are not limited to:

•	The use of force or violence to produce serious bodily injury or death.
•	Abuse of a special position of trust.
•	Disregard by a superior of customary superior - subordinate relationships.
•	Acts or omissions that endanger the security of the United States. 
•	Acts or omissions that endanger the health and welfare of other members of the Air Force.
•	Deliberate acts or omissions that seriously endanger the health and safety of other persons.
•	Rape, sexual assault, aggravated sexual contact, abusive sexual contact, rape of a child, sexual assault of a child, sexual abuse of a child, forcible sodomy and attempts to commit these offenses.

AIR FORCE EVALUATION

DAF/JA recommends denying the application finding no error or injustice in the BCD then or now, and it does not reveal a reason to grant clemency.  As a preliminary matter, this review does not have the benefit of all the facts of the case, including the evidence in aggravation; even if it did, it would be outside the scope to conduct a de-novo review of the facts.  Nevertheless, it should be noted that the applicant served only 13 months prior to wrongfully using cocaine and marijuana, and that her occupational specialty in air traffic control was one in which wrongful drug use could have had catastrophic consequences.  Hence, nothing in the record suggests that a BCD existing currently would be unjust.  It should be noted that the applicant’s post-military conduct – particularly two arrests for bad checks – contradicts her counsel’s claims that she has become a pillar of the community or that her misconduct was an aberration.  Nor does her application show any other evidence of extraordinary contributions to society that would be factors in extenuation or mitigation. There exists no evidence to support her counsel’s allegations of “undue harm,” “injustice” or “material injustice.”  Hence, nothing in the record regarding the applicant’s post-military life suggests that the BCD is currently unjust.  The passage of thirty-four years is not a relevant factor here.  The three legal cases cited by her counsel are distinguishable from the present situation, and they do not support his argument that the applicant should be given an honorable, or even a general discharge.  Frazier v. McGowan is a case from the US Coast Guard Court of Criminal Appeals, and the language comparing an other than honorable discharge to a BCD is merely dicta that does not have precedential value in the present case, and the facts and issues of that case are dissimilar to the applicant’s.  Sofranoff v. United States is a case from the US Court of Claims that held a general discharge would “rob the [plaintiff] of his good name” because he had been wrongly given a general discharge due to “schizoid personality” after 15 years of active duty service in the Marine Corps. There was no similar erroneous service characterization here.  Finally, Stapp v. Resor is a case from the US District Court in the Southern District of New York that held that the plaintiff had wrongly been given a discharge “on other than honorable grounds” (the record does not say whether it was a general or other than honorable discharge) for exercising political free speech during his personal time outside of military duty hours.  There was no similar wrongful discharge here.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 3 Dec 21 for comment (Exhibit F), 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 offense(s) committed, and the applicant’s post-service conduct.  However, the Board finds no basis for clemency in the case.  The Board concurs with the rationale and recommendation of DAF/JA and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  There is no evidence to support her counsel’s allegations of “undue harm,” “injustice” or “material injustice.”  Hence, nothing in the record regarding the applicant’s post-military life suggests that the BCD is currently unjust.  The passage of thirty-four years is not a relevant factor here.  The three legal cases cited by her counsel are distinguishable from the present situation, and they do not support the argument that the applicant should be given an honorable, or even a general discharge.  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-2020-02984 in Executive Session on 26 Jan 22:

, 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 20 May 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 23 Jan 21.
Exhibit D: FBI Report, dated 2 Feb 21.
Exhibit E:	Advisory opinion, DAF/JA, dated 10 May 21.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 3 Dec 21.

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.