RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-01813
		INDEX CODE:  A68.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to honorable or general.

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APPLICANT CONTENDS THAT:

He is requesting an upgrade of his discharge based on the actions he has taken and the direction of his life since his separation from the military.

In support of his appeal, the applicant provided a copy of DD Form 293, Application for Review of Discharge or Dismissal from the Armed Forces of the United States.

Applicant's complete submission, with attachment, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 14 Dec 94 for a period of four years in the grade of airman basic.  He received one Enlisted Performance Report (EPR) in which he received an overall rating of 1 (1-5 (Highest)), which was a referral report.

On 3 Aug 96, the applicant was convicted by general court-martial of damaging property and theft.  He was sentenced to a BCD, confinement for 2 years and 9 months, and forfeitures of all pay and allowances.  The convening authority approved the sentence as adjudged. 

On 14 Dec 99, the approved sentence of the general court-martial having been affirmed, the applicant’s discharge was ordered into execution.  He was discharged on 16 Dec 99 with a BCD.  He was credited with 3 years, 2 months, and 21 days of active service.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating that there is no legal basis for upgrading the applicant's discharge.  The appropriateness of his sentence, within the prescribed limits, is a matter within the discretion of the court-martial and may be mitigated by the convening authority or within the course of the appellate review process.  The applicant had the assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court and the convening authority.  These matters were considered in review of the sentence.  The applicant was thus afforded all rights granted by statue and regulation.  He provided no compelling rationale to mitigate the approved BCD given the circumstances of the case.  

In AFLSA/JAJM's view, clemency should only be granted when the applicant has demonstrated that the degree of punishment in relation to the crime was a clear injustice.  The applicant cannot and has not made such a showing.  Hence, clemency by the Board is unwarranted.

A complete copy of 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 18 Apr 03 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 Air Force office of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  The evidence of record indicates that he was sentenced to a BCD, confinement for 2 years and 9 months, and forfeitures of all pay and allowances as a result of his conviction by general court-martial for damaging property and theft.  He now requests that his BCD be upgraded based on the actions he has taken and the direction of his life since his separation.  After a thorough review of the facts and circumstances of this case, we find no evidence which indicates that the applicant’s BCD was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ).  Furthermore, because of the short duration since the applicant’s separation, we do not find upgrading the applicant’s BCD based on clemency appropriate in this case at this time.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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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 AFBCMR Docket Number BC-2002-01813 in Executive Session on 27 May 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 13 Feb 03, w/atch.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 8 Apr 03.
    Exhibit D.  Letter, SAF/MRBR, dated 18 Apr 03.

                                   Chair