RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00274

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

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

APPLICANT’S CONTENTIONS

At the time of his discharge, he was young and should have been more disciplined.  After a court appearance in his favor, a friend of the plaintiff made a false statement after the verdict.  Because of his court appearance and the new complaint, he was discharged because not enough time had passed between incidences.  

In support of his request for clemency, the applicant provides numerous character reference letters. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman (E-2).

On 9 Sep 85, the applicant’s commander recommended the applicant be discharged from the Air Force, under the provisions of AFR 39-10, Administrative Separation of Airmen, paragraph 5-47, for misconduct due to discreditable involvement with military or civil authorities.  The specific reasons for the action were:

a.	On 3 May 85, the convening authority published Special Court-Martial Order 6.  The order stated the applicant pled guilty to two charges and one specification of sodomy and one specification of adultery in violation of Articles 125 and 134, under the Uniform Code of Military Justice (UCMJ).  The applicant was sentenced to forfeiture of $50.00 pay for 1 month.

a.	On 26 Aug 85, AF Form 3070, Record of Nonjudicial Punishment Proceedings, indicates applicant received nonjudicial punishment, Article 15 for use of offensive language.  He received a reduction in grade to airman (E-2), forfeiture of $150.00 pay, 14 days of restriction, and 14 days of extra duty.

On 9 Oct 85, the Acting Staff Judge Advocate found the discharge action legally sufficient and the discharge authority directed the applicant be discharged for misconduct due to discreditable involvement with military or civil authorities with a general service characterization.  Probation and rehabilitation was considered, but not offered.

On 16 Oct 85, the applicant received a general (under honorable conditions) discharge.  His narrative reason for separation is “Misconduct – Pattern of Discreditable Involvement with Military or Civil Authorities” and he was credited with 2 years, 10 months, and 9 days of total active service.

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

POST-SERVICE INFORMATION

On 10 Mar 21, the Board sent the applicant a request for post-service information and advised the applicant he was required to provide a Federal Bureau of Investigation (FBI) Identity History Summary Check, which would indicate whether or not he had an arrest record.  In the alternative, the applicant could provide proof of employment in which background checks are part of the hiring process (Exhibit C).  The applicant replied on 7 Apr 21 and provided an FBI report.  According to the report, the applicant has had no arrests since discharge, but he did have a driving under the influence (DUI) arrest right before his discharge on 16 Sep 85. The applicant also provided certificates, commendations, and letters of his employment.

The applicant’s complete response is at Exhibit D.

APPLICABLE AUTHORITY/GUIDANCE

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 10 Mar 21, the Board staff provided the applicant a copy of the liberal consideration 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.

FINDINGS AND CONCLUSION

1.  The application was timely filed.  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 limitation 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.  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, and in the absence of substantial post-service information, the Board finds no basis to do so.  Therefore, 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-2020-03555 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 17 Aug 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Clemency  
                  Guidance), dated 10 Mar 21.
Exhibit D: Applicant’s Response, w/atchs, dated 7 Apr 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.