RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00499

XXXXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

He was misled and misrepresented by legal counsel.  He was questioned without legal right to counsel and his child was used to break him down into submission.  His trial was unfair due to his confusion and marital/family issues.  Given the current world of political, and in some cases military corruption, and all the pardoning and forgiveness today, he deserves consideration.

In support of his application, he provides a Department of Veterans Affair (VA) hearing transcript, military evaluations, civilian certifications, awards, accomplishments and character 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 11 Sep 19, a VA Administrative Decision memorandum, provided by the applicant, shows on 29 Dec 83 he enlisted for a period of four years and on 29 Nov 87 he reenlisted for a period of four years. The memorandum also shows he was found guilty for violation of the Uniformed Code of Military Justice, Article 112a for wrongful use of marijuana "on or about 1 Jul 86 and on or about 30 June 89" and "wrongful use of cocaine on or about 12 Nov 89."  In addition to the bad conduct discharge he received a reduction of grade and six months of confinement. Finally, the memorandum shows his Air Force service for the period 29 Dec 87 to 13 Jun 91 is considered dishonorable for VA purposes.

On 13 Jun 91, DD Form 214, Certificate of Release or Discharge from Active Duty, provided by the applicant shows he was discharged from the Air Force for Bad Conduct under authority of AFR 39-10, Conviction by Court-Martial (Other than Desertion) with the corresponding separation code of JJD and reentry code 2B.

POST-SERVICE INFORMATION

On 25 Feb 20, the Board sent the applicant a request for post-service information (Exhibit C), including a standard criminal history report from the Federal Bureau of Investigation (FBI), which the applicant provided on 6 Aug 20 (Exhibit D).  According to the report, on 15 Nov 89, the applicant was arrested for “use, possession, distribution of cocaine and marijuana” and was convicted by general court-martial, 6 months confinement, reduction to E-1 and discharge from the Air Force.
 
APPLICABLE AUTHORITY

Air Force Instruction 36-2603, Air Force Board for Correction of Military Records, paragraph 3.4.4, states applicants have the burden of proof for providing evidence in support of their claim that they are the victim of an error or injustice. 

On 25 July 2018, the Under Secretary of Defense issued supplemental guidance (Wilke Memo) 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. 

The entire guidance can be found at Exhibit B.

According to AFI 36-3208, Administrative Separation of Airmen, incorporating changes through 8 Jun 17, paragraph 1.18, the types of service characterization are as follows: 

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 trial 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.

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 error or injustice.  Per AFI 36-2603, Air Force Board for Correction of Military Records, applicants have the burden of proof for providing evidence in support of their claim.  Board staff made reasonable efforts to obtain the applicant’s records; however, the Board is only in receipt of the evidence provided by the applicant.  Therefore, the Board is unable to consider the applicant's overall quality of service or the events that precipitated the discharge.  The applicant has provided an FBI summary, which includes a single arrest that shows on 15 Nov 89, while in the Regular Air Force, the applicant was arrested for “use, possession, distribution of cocaine and marijuana,” which resulted in a general court-martial.  In the interest of justice, the Board considered upgrading the discharge based on clemency; however, in view of the seriousness of the offenses of which the applicant stood convicted and the fact that it has been nearly 30 years since his separation, the Board does not find the evidence provided is sufficient to warrant a recommendation for relief based on clemency.  Specifically, notwithstanding documents related to his employment, the applicant has not provided sufficient evidence concerning his post-service activities.  Should the applicant provide documentation pertaining to his post-service accomplishments, such as statements from community leaders and acquaintances attesting to his good character and reputation and other evidence of successful post-service rehabilitation, the Board would be willing to review the materials for possible reconsideration of his request based on clemency. In view of the foregoing, the Board recommends against correcting the applicant’s record.

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-2020-00499 in Executive Session on 27 May 21:

, 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 27 Jul 20.
Exhibit B: Documentary evidence, excluding relevant excerpts from official records.
Exhibit C:	Request for FBI/Post-Service Clemency, dated 25 Feb 20.
Exhibit D: FBI Report, dated 22 Jun 20.

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.