RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-04082
		INDEX CODE:  110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded.
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APPLICANT CONTENDS THAT:

Writing a bad check while on active duty does not warrant a bad conduct discharge.  He cannot vote or own a firearm due to his discharge.

The applicant did not submit any documentation in support of his request.  The applicant’s complete submission is at Exhibit A.
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STATEMENT OF FACTS:

Applicant contracted his enlistment in the Regular Air Force on 14 Nov 80 for a period of four (4) years.  He was progressively promoted to the grade of airman (E-2), with an effective date and date of rank of 1 Jan 81.  He was reduced to the grade of airman basic (E-1), with a date of rank (DOR) of 17 Apr 81, pursuant to an Article 15.

The applicant received three Article 15s as follows:

-- On 7 Apr 81, 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 for failure to go at the time prescribed to his appointed place of duty, on or about 30 Mar 81, in violation of Article 86, UCMJ; and, for failure to obey a lawful order by consuming alcoholic beverages within eight hours of reporting for scheduled security policy duty, 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 reduction to the grade of airman basic (E‑1), with a new date of rank of 17 Apr 81.  Applicant did not appeal the punishment.

-- On 21 May 81, 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 for operating a vehicle while drunk, on or about 16 May 81, in violation of Article 111, UCMJ.  The applicant did not consult a lawyer, waived his right to demand trial by court-martial, accepted nonjudicial punishment, but did not desire to present an oral or written presentation.  After considering all matters presented to him [third alcohol related incident - two DUIs and drinking prior to duty], the commander found that the applicant did commit one or more of the offenses alleged.  The commander imposed punishment consisting of a forfeiture of $250.00 for two months and 30 days of correctional custody.  The applicant’s appeal of the nonjudicial punishment was denied on 29 May 81.

-- On 5 Jun 81, 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 for failure to obey a lawful order not to enter any clubs selling alcoholic beverages, on or about 29 May 81, in violation of Article 92, UCMJ.  The applicant did not consult a lawyer, waived his right to demand trial by court-martial, accepted nonjudicial punishment, but did not desire to present an oral or written presentation.  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 consisting of forfeiture of $250.00 for one month and 30 days of correctional custody.  Applicant did not appeal the punishment.

On 3 Dec 81, the applicant, represented by military counsel, was tried before a general court-martial at Castle AFB.  He was charged with the theft of another airman’s wallet, military ID card and $20.00, totaling an approximate value of $50.00 or less; and, an AM/FM stereo radio/cassette player, two stereo speakers and automobile wax from Sears, totaling approximately $284.00, in violation of Article 121, UCMJ.  He was also charged with fraudulently passing a bad check to Sears in the amount of $284.57, in violation of Article 123, UCMJ; acting as an accessory after the fact by hiding in his car a camera stolen by another airman, in violation of Article 78, UCMJ; and, entering into a conspiracy, including the theft of $100.00 from the Army and Air Force Exchange Service (AAFES), store merchandise valued at more than $400.00 and forgery, in violation of Article 81, UCMJ.  He entered a plea of guilty to all but the theft of the airman’s wallet, money and ID card and to being an accessory after the fact.  The applicant’s motion for a finding of not guilty as to the theft of the wallet, money and ID card was granted.  On 8 Dec 81, applicant was sentenced to a bad conduct discharge, confinement at hard labor for one year and one day and forfeiture of all pay and allowances.  The sentence was approved by the convening authority on 25 Feb 82.  The Air Force Court of Military Review set aside the findings of guilty as to the accessory after the fact charge, but affirmed the sentence as adjudged.  On 27 Oct 82, the U.S. Court of Military Appeals denied the applicant’s petition for review.

On 14 Jan 83, the applicant was discharged with a bad conduct discharge under the provisions of General Court-Martial Order No. 302 (conviction by court-martial - other than desertion).  He had completed a total of 1 year, 1 month and 4 days and was serving in the grade of airman basic (E-1) at the time of discharge.  The applicant’s lost time was during the period 8 Dec 81 through 18 Jul 82.
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied.  JAJM indicates that the application is untimely and the applicant provides no basis for the 20-year delay in filing.  JAJM points out that the maximum punishment for the offenses of which the applicant was found guilty is a dishonorable discharge, confinement for 12.5 years and total forfeiture of all pay and allowances.  The applicant’s approved sentence was a bad conduct discharge, confinement for one year and one day and total forfeiture of pay and allowances.  JAJM states that the stipulation of fact, relayed at the applicant’s trial, concerning the alleged stolen and forged checks clearly indicate a somewhat greater criminal intent than the passing of a bad check as the applicant claims.  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 has made no such showing.  Accordingly, there is no merit to the applicant’s claim.  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 14 Mar 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 thoroughly reviewed applicant’s record and the circumstances surrounding the discharge in 1983.  In this respect, we note that the applicant’s discharge had its basis in his trial and conviction by a duly constituted military court.  Considering the serious nature of his infractions against the good order and discipline of the service, we agree with the opinion and recommendation of the Military Justice Division 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 foregoing and absent evidence showing he has made a successful post-service adjustment, 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 Docket Number BC-2002-04082 in Executive Session on 22 May 03, under the provisions of AFI 36-2603:

The following documentary evidence was considered: 

   Exhibit A.  DD Form 149, dated 10 Dec 02.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, undated.
   Exhibit D.  Letter, SAF/MRBR, dated 14 Mar 03.