RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: 02-02636

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His discharge be upgraded.

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THE APPLICANT CONTENDS THAT:

He joined the Air Force for a career; however, during his tour in Germany, his parents became financially dependent upon him, and required his immediate presence.

The applicant states that he was told by fellow servicemembers that by wrongfully committing the offenses leading to his discharge, he could quickly get out of the Air Force and go home.  He was immature at the time.  He regrets his actions, and is sincerely sorry for what he has done.  He was also told by his counsel that after 3 to 5 years, his type of discharge would be upgraded to a “general discharge with intentions.”

Applicant’s complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 18 September 1973, the applicant enlisted in the Regular Air Force for a period of four years.  

On 15 January 1974, the commander notified him of his intent to impose nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 86.  Specifically, that on or about 13 January 1974, at Lackland AFB, Texas, he failed to go at the time prescribed to his appointed place of duty.  He waived his right to a trial by court-martial and accepted the nonjudicial punishment.  After considering his presentation, the commander determined that he did commit the alleged offense and imposed nonjudicial punishment consisting of reduction to the grade of airman basic and forfeiture of $50.00.  However, the portion of the punishment, which provided for reduction in grade, was suspended until 15 April 1974, at which time it would be remitted without further action.

On 7 June 1977, the commander notified him of his intent to impose nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 121.  Specifically, that on or about 27 May 1977, at Rhein-Main AB, Germany, he stole a cassette tape, of a value of about $5.50, the property of the Army Air Force Exchange Service (AAFES).  After consulting with military legal counsel, he accepted the nonjudicial punishment and made an oral presentation to the commander.  After considering his presentation, the commander determined that he did commit the alleged offense and imposed nonjudicial punishment consisting of reduction to the grade of airman first class and forfeiture of $25.00.  However, the portion of the punishment, which provided for reduction in grade, was suspended until 5 December 1977, at which time it would be remitted without further action.

On 22 and 23 September 1977, he was tried by special court-martial for larceny and making a false official statement.  Specifically, for stealing a case containing 60 cartons of cigarettes from the Base Exchange, fleeing on foot and leaving his car, and then reporting to the security police that his car was stolen to establish an alibi.  He pled not guilty to the charges, but was convicted of both offenses.  He was sentenced to reduction to the grade of airman basic and to receive a Bad Conduct Discharge (BCD).

The convening authority disapproved the finding of guilty to making a false official statement, but approved the sentence.

The Air Force Court of Military Review affirmed the court-martial conviction and sentence.

The United States Court of Military Appeals denied review of the case, and on 16 August 1978, the BCD was ordered executed.

On 22 September 1978, the applicant was discharged under the provisions of AFR 39-12, with service characterized as under other than honorable conditions, and issued a DD Form 259AF (BCD Certificate).  He completed 5 years, 1 months, and 5 days of active service.

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AIR FORCE EVALUATIONS:

AFLSA/JAJM recommends the application be denied.  AFLSA/JAJM states, in part, that given the serious nature of the offenses involved - larceny and false official statement - a court-martial was an appropriate forum.  The sentence was well within the legal limits and was an appropriate punishment for the offense of larceny.  His court-martial was properly conducted and he was afforded all the rights accorded by law.  AFLSA/JAJM notes that the court-martial did not adjudge confinement or any forfeiture of pay.  While the applicant contends that he was immature at the time, he was almost 28 years old at the time.  He has provided no evidence of a clear error or injustice related to the sentence and presents insufficient evidence to warrant upgrading his BCD.  

AFLSA/JAJM states that the Board’s authority to correct court-martial records is limited to correction of a record to reflect the actions taken by reviewing authorities under the UCMJ and to take action on the sentence for the purpose of clemency.

AFLSA/JAJM notes 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 trial or completion of sentence, and the decision to grant or withhold such pardons is made primarily on the basis of post-trial conduct and citizenship.

The AFLSA/JAJM evaluation is at Exhibit C.

AFPC/DPPRS recommends the application be denied, and states, in part, that the discharge was consistent with the procedural and substantive requirements of the discharge regulation, and 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.  

The AFPC/DPPRS evaluation is at Exhibit D.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS:

Complete copies of the Air Force evaluations were forwarded to the applicant on 20 December 2002 for review and response within 30 days.  However, as of this date, this office has received no response.

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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.  After a thorough review of the evidence of record and applicant’s submission, we are not persuaded that relief should be granted.  Applicant’s contentions are duly noted; however, we do not find these assertions, in and by themselves, sufficiently persuasive to override the rationale provided by the Air Force.  The Air Force Legal Services Agency, Military Justice Division (AFLSA/JAJM) has adequately addressed applicant’s contentions and we agree with their opinion 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.  Hence, we find no compelling basis to recommend granting the relief sought.

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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 BC-2002-02636 in Executive Session on 13 March 2003 under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 11 Aug 02, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 5 Nov 02.
    Exhibit D.  Letter, AFPC/DPPRS, dated 4 Dec 02.
    Exhibit E.  Letter, SAF/MRBR, dated 20 Dec 02.