RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2003-00080

	 	COUNSEL:  NONE

	 	HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His discharge be upgraded to general (under honorable conditions).

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THE APPLICANT CONTENDS THAT:

He was a small town country boy who had never been anywhere prior to entering the military and got mixed up with the wrong group of people who got him in trouble.

The applicant states that he was unjustly treated at Loring AFB, ME, and led to believe that his discharge was to be upgraded to a general (under honorable conditions).  Prior to entering the service, and since leaving the service, he has had a clean record.  He thought his discharge had already been upgraded and only discovered recently while attempting to seek treatment through the Department of Veterans Affairs (DVA) that it had not been upgraded.

Since his discharge 29 years ago, he has worked and raised one daughter who is 27 and married.  He is currently raising another daughter who is 7 years old.  He was recently laid off due to a lack of work in his area.  As a result, he now has no life or health insurance and really needs DVA medical benefits.

In support of the appeal, the applicant submits a copy of his DD Form 214, Report of Separation from Active Duty.

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 26 December 1972 for a period of four years.

On 30 October 1974, he was tried by a general court-martial on charges of stealing military property, in violation of Article 121 of the Uniform Code of Military Justice (UCMJ).  Specifically, for stealing three MD-1 Survival Kits and two ML-4 Survival Kits for a total value of more than $500.00.  He was found guilty in a trial by judge alone and was sentenced to a bad-conduct discharge (BCD), confinement at hard labor for twelve months, forfeiture of $220.00 per month for twelve months, and reduction to the grade of airman basic.

On 3 January 1975, the convening authority approved the sentence as adjudged except for that portion regarding execution of the BCD that was suspended until 2 January 1976.

His conviction and sentence was affirmed by the United States Air Force Court of Military Review on 7 March 1975.

On 25 April 1975, the remaining period of confinement and forfeitures were suspended by the Commander, Lowery Technical Training Center, until 24 August 1975 and he was returned to active duty at Loring AFB, ME.

The 42nd Combat Support Group Commander directed a probation violation hearing be conducted in accordance with Article 72, UCMJ, on 18 November 1975, as a result of allegations that the applicant had threatened his immediate supervisor.  The hearing was held on 24 November 1975 and resulted in a determination that he had violated his probation and the suspension of his BCD was vacated.  He appealed the vacation and after considering his personal presentation, the commander denied his appeal.

On 23 December 1975, the suspended BCD was vacated and he was discharged with service characterized as under other than honorable conditions on 24 December 1975 and issued a DD Form 259AF, BCD Certificate.  He completed 2 years, 5 months, and 8 days active service, which excludes 193 days of lost time (15 days pretrial confinement 5 Aug 74 - 19 Aug 74, and 178 days confinement 30 Oct 74 - 25 Apr 75).

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends the application be denied and states, in part, that there is no legal basis for upgrading the applicant’s discharge.  The appropriateness of the applicant’s 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.  He had the assistance of counsel and was afforded all rights granted by statute and regulation.  He provides no compelling rationale to mitigate the approved punitive discharge given the circumstances of the case.

AFLSA/JAJM also states that while clemency is an option, there is no reason to exercise such consideration.  Clemency was granted to the applicant as a result of the convening authority’s action suspending the BCD until 2 January 1976.  In addition, while he was serving his sentence at Lowery Technical Training Center, his commander remitted his confinement and forfeitures and he was returned to active duty.

The AFLSA/JAJM evaluation is at Exhibit C.

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APPLICANT’S REVIEW OF AIR FORCE EVALUATION:

The applicant states that he never stole the kits and was deceived by the person that actually stole the kits that the kits were out of date.  He was in possession of them; however, he never stole them.  His lawyer told him that if he pled guilty, he would just get a year of confinement and a fine; whereas, if he did not, he could face 20 years of confinement.  Despite the fact that he did not take the kits, he did as his lawyer advised.

In regard to his treatment at Loring AFB, the applicant states that everyone was prejudiced against him because he was guilty of stealing the survival kits.  Furthermore, the commander told him to his face that he was prejudiced against him because he was a pilot.

The applicant’s complete response is at Exhibit E.

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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 and noting the applicant’s complete submission, we are not persuaded that a change to his characterization of service is warranted.  The comments of the Air Force Legal Services Agency are supported by the evidence of record.  We find no evidence of error in this case and after thoroughly reviewing the evidence of record, we do not believe he has suffered from an injustice.  Therefore, based on the evidence of record, we find no basis upon which to favorably consider this application.

4.  We also find insufficient evidence to warrant a recommendation that the discharge be upgraded on the basis of clemency.  We have considered the service member's overall quality of service, the events that precipitated the discharge, and available evidence related to his post-service activities and accomplishments.  On balance, we do not believe that clemency is warranted.

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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-2003-00080 in Executive Session on 22 May 2003, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, undated, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 6 Mar 03.
    Exhibit D.  Letter, SAF/MRBR, dated 28 Mar 03.
    Exhibit E.  Letter, Applicant, dated 13 Apr 03.