RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-00345
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.

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APPLICANT CONTENDS THAT:

He desires his discharge upgraded.  He gave 10 years of his life to the Air Force and enjoyed every day.  He indicates that he is patriotic and devoted to the military.

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 30 August 1973.

Special Court-Martial Order, dated 6 February 1980, indicates the applicant was tried and convicted for the following reasons:

Charge I:  Violation of the Uniform Code Of Military Justice, Article 129.

Specification:  In that the applicant did on or about 9 November 1979, in the nighttime, burglariously break and enter the dwelling house of a master sergeant with intent to commit larceny therein.

Charge II:  Violation of the Uniform Code of Military Justice, Article 121.

Specification:  In that the applicant did on or about 9 November 1979, steal a motorcycle fairing, of a value of about $200.00, the property of a master sergeant.

Findings of the Specifications and Charges:  Guilty.

He was sentenced to confinement at hard labor for three months, forfeiture of $450.00 per month for three months, and a reduction in grade to E-4.

On 8 January 1980, the sentence was adjudged.

On 18 July 1983, a special court-martial charge was preferred against the applicant for one specification alleging larceny of government-owned gasoline valued at $157.50.

In an undated request, the applicant requested a Chapter 4 Discharge (Discharge in Lieu of Trial by Court Martial).

The undated request for discharge in lieu of trial by court-martial indicates that the commander recommended the request be approved for the following reasons:

	The applicant had no rehabilitative potential for further utilization in the Air Force because he engaged in larcenous conduct after he had previously been convicted of burglary and larceny in 1980.  The conviction did not rehabilitate him and it is not likely any future conviction would rehabilitate him either.

	A discharge of the applicant in lieu of courts-martial would not have a detrimental impact on morale and discipline because it was well known that he had a previous conviction and members of the squadron would not feel he was getting away with larceny.  In either case, (trial or discharge) he would probably have both a conviction and a bad discharge on his record.

	The applicant did not apparently commit the criminal offense with a view towards securing an administrative discharge from the Air Force.

	There was a potential proof problem at trial since the element of ownership was provable only by circumstantial evidence.

On 4 August 1983, after consulting with counsel the applicant requested to be discharged from the Air Force in lieu of trial by court-martial and indicated he understood he could receive an under other than honorable conditions (UOTHC) discharge.

On 11 August 1983 the Assistant Staff Judge Advocate and the Staff Judge Advocate recommended approval of the applicant’s request for discharge in lieu of court-martial.  They also recommended he be discharged with service characterized as under other than honorable conditions (UOTHC), without probation and rehabilitation.

On 12 August 1983, the discharge authority approved the applicant’s discharge.

On 24 August 1983, the applicant was discharged with service characterized as under other than honorable conditions (UOTHC) in the grade of staff sergeant, under the provisions of AFR 39-10, (Discharge In Lieu Of Trial By Court-Martial).  He served 9 years, 11 months and 25 days of total active service.

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AIR FORCE EVALUATION:

AFPC/DPPRS recommended denial.  They indicated that based upon the documentation in the file, they believe the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The discharge was within the discretion of the discharge authority.  The applicant did not submit any new evidence or identify any errors or injustices that occurred in the discharge processing.  He provided no other facts warranting an upgrade of the discharge.  He has not filed a timely request.

The evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 16 May 2003, a copy of the Air Force evaluation was forwarded to the applicant for review and response within 30 days.  As of this date, no response has been received by this office.

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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 probable error or injustice.  After thoroughly reviewing the evidence of record, we find no evidence to show that the applicant’s discharge as a result of his conviction by court-martial was erroneous or unjust.  While the applicant believes his UOTHC discharge should be upgraded, we note that the convening authority approved the UOTHC discharge and the commander determined the UOTHC discharge was an appropriate consequence that accurately described the applicant’s military service and his crimes.  The Board notes that the applicant has provided no evidence to support his claim.  In view of the foregoing and considering the serious nature of his infraction, we agree with the opinion and recommendation of the Air Force 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.  Therefore, based on the evidence of record, we find no compelling basis to recommend granting the relief sought.

4.	Although the applicant did not specifically request consideration based on clemency, we also find insufficient evidence to warrant a recommendation that the discharge be upgraded on that basis.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of an error or an 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 AFBCMR Docket Number BC-2002-00345 in Executive Session on 26 June 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 2 April 2003.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFPC/DPPRS, dated 4 May 2003.
   Exhibit D.  Letter, SAF/MRBR, dated 16 May 2003.