RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  02-00291
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to honorable or a general under honorable conditions discharge.
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APPLICANT CONTENDS THAT:

He may be attending law school in Jan 03 and would like to clear his record.

No supporting documents were submitted.  The applicant’s complete submission is at Exhibit A.
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STATEMENT OF FACTS:

The applicant’s Total Active Federal Military Service Date is 10 Jul 73.  He was progressively promoted to the grade of staff sergeant (E-5), with an effective date and date of rank of 2 Mar 80.  The following is a resume of his Enlisted Performance Reports ratings subsequent to his promotion to that grade (oldest to most recent):  8, 6, 7, 8, 9, 3.

On 28 Aug 84, applicant was notified of his commander's intent to impose nonjudicial punishment on him under Article 15, UCMJ.  The misconduct applicant had allegedly committed was disobeying a lawful order on or about 14 Aug 84, in violation of Article 92, UCMJ.  The applicant consulted a lawyer, waived his right to demand trial by court-martial and accepted nonjudicial punishment.  After considering all matters presented to him, the commander found that the applicant did commit one or more of the offenses alleged.  The commander imposed punishment of forfeiture of $300.00 per month for 2 months and a suspended reduction in grade to sergeant until 1 Mar 85 at which time, unless the suspension was vacated sooner, it would be remitted without further action.  The applicant submitted documentation indicating that he appealed the nonjudicial punishment on 14 Sep 84.  The applicant’s appeal was granted, in part, by the appellate authority.  The portion of the punishment consisting of forfeiture of $300.00 per month for 2 months was reduced to $200.00 per month for 2 months.  The Article 15 action was filed in the applicant’s Unfavorable Information File (UIF).

On 6 November 1984, the applicant was tried before a special court-martial  at Torrejon Air Base, Spain.  He was charged with violation of Article 86, UCMJ - Specification:  Failure to go at the time prescribed at T----- AB, on or about 23 Sep 84; and, violation of Article 92, UCMJ - Specifications:  Failure to obey his commander’s order to weigh-in, on or about 26 Sep 84, and failure to obey his commander’s order to not leave Building 458, on or about 26 Sep 84.  He pled not guilty to the charges and specifications; however, he was found guilty.  On 9 Nov 84, applicant was sentenced to a bad conduct discharge and a reduction to the grade of airman basic (E-1).  The sentence was approved by the convening authority and on 28 Jun 85, the Air Force Court of Military Review affirmed the findings and sentence.

He received a bad conduct discharge on 26 Mar 86 under the provisions of AFR 39-10 (conviction by court-martial (other than desertion)).  He had completed a total of 12 years, 8 months and 18 days and was serving in the grade of airman basic (E-1) at the time of discharge.
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AIR FORCE EVALUATION:

HQ AFLSA/JAJM recommends the application be denied.  HQ AFLSA/JAJM states that the applicant was on the weight management program.  On 9 Nov 84, he was convicted by a special court-martial for a failure to repair, in violation of Article 86, UCMJ, and two specifications of failing to obey the lawful orders of his commanding officer, in violation of Article 92, UCMJ.  He was sentenced to a bad conduct discharge and reduced to the grade of airman basic.  The convening authority approved the sentence as adjudged on 12 Dec 84.  On 28 Jun 85, the Air Force Court of Military Review affirmed the findings of guilty and the sentence.  The Court of Military Appeals denied the applicant’s petition for review on 5 Dec 85.

JAJM noted that, in addition to the special court-martial conviction, the applicant received an Article 15 on 14 Sep 84 for disobeying the order of a noncommissioned officer.  He also received a letter of reprimand on 5 Aug 83 for assaulting his wife during a domestic dispute.

JAJM is of the opinion that that there is no reason for the Board to exercise clemency in this case.  The record of trial indicates this case was fully litigated.  The applicant has provided no evidence of any injustice related to his court-martial.  There is no merit to the applicant’s claim.

JAJM indicated that the applicant may apply for a Presidential pardon under the Provisions of Title 28, Code of Federal Regulations, Section 1.1.  Such applications are considered only if at least five years have passed since the trial or completion of sentence, whichever is later.  The decision to grant or withhold such pardons is made primarily on the basis of post-trial conduct and citizenship.  A pardon has no legal effect other than to express forgiveness by the United States at the highest level.

The AFLSA/JAJM evaluation is at Exhibit C.
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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 13 September 2002 for review and response.  As of this date, no response has been received by this office (Exhibit D).
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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case.  However, we agree with the opinion and recommendation of the appropriate Air Force office and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  In view of the above and absent evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

4.  The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing is not favorably considered.
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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered Docket Number 02-00291 in Executive Session on 12 December 2002, under the provisions of AFI 36-2603:

The following documentary evidence was considered: 

   Exhibit A.  DD Form 149, dated 23 Jan 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 7 June 2002.
   Exhibit D.  Letter, SAF/MRBR, dated 13 September 2002.