RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2002-04088
		INDEX CODE: 110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His bad conduct discharge be upgraded to an honorable discharge.

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APPLICANT CONTENDS THAT:

He indicates that the bad conduct discharge given to him was an injustice.  The court-martial record clearly indicates that he had no intent to desert the Air Force.  He believes the discharge should be upgraded due to the unfair treatment and excessive sentence he received.  He states that if he had had an experienced attorney he would not have received a bad conduct discharge or confinement.

In support of his appeal, the applicant provided a personal statement and two character reference letters.

Applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Applicant enlisted in the Regular Air Force on 24 March 1965 in the grade of airman basic for a period of four years.

On 19 May 1967, the applicant was convicted by General Court-Martial for the following reasons:

Charge:  Violation of the Uniform Code Of Military Justice, Article 85.

Specification 1:  In that the applicant did on or about 10 October 1966, without proper authority and with intent to remain away therefrom permanently, absent himself from his organization, to wit:  XXX Tactical Control Squadron, Myrtle Beach Air Force Base, South Carolina, and did remain so absent in desertion until he was apprehended on or about 20 February 1967.

The applicant pleaded not guilty; however, he was found guilty to the specification and the charge.  He was sentenced to a bad conduct discharge, confinement at hard labor for 18 months, reduction to the grade of airman basic, and a forfeiture of $80.00 per month for 18 months.

On 26 April 1967, the sentence was adjudged.

The Air Force Court of Criminal Review reviewed the applicant’s conviction because the sentence included a bad conduct discharge.  On 22 June 1967, they affirmed the findings of guilty despite having found one error.  The court reduced the forfeitures and period of confinement to 15 months.  On 27 November 1967 the convening authority at the Lowry Technical Training Center suspended the bad conduct discharge and the remaining confinement and forfeiture until 27 May 1968 at which time, unless the suspension was sooner vacated, the sentence of a bad conduct discharge and remaining confinement and forfeitures would be remitted without further action.  

General Court-Martial Order #15, dated 29 February 1968 indicates that the sentence to a bad conduct discharge, confinement and forfeitures were vacated and that the punishment would be executed.  However, so much of the sentence as pertained to confinement and forfeitures only as remained unexecuted on 11 March 1968 was remitted.

Applicant was discharged on 19 May 1967, in the grade of airman basic with service characterized as under other than honorable conditions (UOTHC), under the provisions of General Court-Martial Order #11, dated 19 May 1967 and General Court-Martial Order #15, dated 29 February 1968.  He served 1 year, 10 months, and 1 day total active military service with 407 days of lost time.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They indicated that while clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant did not serve honorably.  He admittedly joined the Air Force to avoid being drafted into the Army.  Shortly after enlisting, he proceeded on a course of conduct leading to discharge.  There are consequences for criminal behavior - the military judge, convening authority and the appellate court believed a bad conduct discharge was an appropriate consequence that accurately characterized his military service and his crime.  The applicant’s recent good conduct does not erase his misconduct in his last enlistment, which appropriately ended with a bad conduct discharge.  The applicant has provided no evidence of a clear error or injustice related to the sentence.

The applicant presents no evidence to warrant upgrading the discharge.  Nor does he demonstrate an equitable basis for relief.  Yet he wants his DD Form 214 to reflect the same character of service as those who complete their terms of enlistment and follow orders that separate them from friends and family for extended periods.  The applicant’s claim lacks merit and is untimely.

The evaluation is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 7 March 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.  The applicant contends, among other things, that his first sergeant discriminated against him and confined him to base and as a result, he went AWOL; and that if he had had an experienced attorney, he would not have received a bad conduct discharge or confinement.  However, he submits no persuasive evidence to support these contentions.  We believe his offense of desertion during the height of the Vietnam conflict supported the service characterization he received.  While the applicant believes his bad conduct discharge should be upgraded due to the unfair treatment and excessive sentence he received, we note that the approved sentence of the military court was within the maximum punishment authorized by the Uniform Code of Military Justice (UCMJ) for the offense for which the applicant was convicted.  We believe it is significant that a substantially harsher punishment was authorized under the UCMJ for the offense of which the applicant stood convicted.  We note that the Air Force Court of Criminal Review affirmed the findings of guilty but reduced the applicant’s confinement and forfeitures to 15 months.  It also appears that the convening authority suspended the bad conduct discharge and remaining punishment and would remit them if the applicant successfully completed retraining.  However, it appears that since the punishment was executed, the applicant did not successfully complete retraining.  Therefore, considering the extremely serious nature of his infraction, 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.  The letters submitted in support of his request are duly noted; however, while we find his post-service conduct commendable, we are not persuaded by the evidence submitted in support of his appeal, that a change to his characterization of service is warranted on the basis of clemency.

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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-2002-04088 in Executive Session on 15 May 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 20 December 2002, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLSA/JAJM, dated 19 February 2003.
   Exhibit D.  Letter, SAF/MRBR, dated 7 March 2003.