RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:				DOCKET NUMBER:  BC-2003-00381
INDEX CODE:  110.02
	XXXXXXXXXXXXXXXXXX			COUNSEL: NONE

	XXX-XX-XXXX				HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT: 

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

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APPLICANT CONTENDS THAT:

He is interested in cleaning up his past and wishes to be eligible to be buried at Jefferson Barracks Memorial where his father is buried.

In support of his application, he provided a personal statement and several documents evidencing his post-trial achievements.  A copy of the applicant’s complete submission with attachments is at Exhibit A.

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STATEMENT OF FACTS:

On 4 March 1987, the applicant enlisted in the Regular Air Force at the age of 25 in the grade of airman first class (E-3) for a period of four years.  The applicant was trained in Air Force Specialty Code (AFSC) 2S051, Receiving Technician.  The applicant received eleven enlisted performance reports from the period 4 March 1987 to 9 April 1997 with overall ratings of 9, 9, 8, 4, 4, 5, 4, 4, 4, 5, and 5.  The applicant was awarded the Air Force Commendation Medal, Air Force Good Conduct Medal with two oak leaf clusters, National Defense Service Medal, Air Force Longevity Award with one device, Air Force Achievement Medal, NCO PME Graduate Ribbon, Air Force Outstanding Unit Award, and the Air Force Training Ribbon.  He served from 2 August 1990 through 30 November 1995 in support of Operation Desert Storm/Shield.

The applicant, while serving in the grade of staff sergeant, was convicted of larceny by a special court-martial on 26 January 1996 for shoplifting at a Base Exchange.  He pled and was found guilty, and was sentenced to a bad conduct discharge, confinement for 2 months, and reduction in grade to airman basic.  The convening authority approved the sentence, as adjudged; then, on 24 September 1996, suspended the execution of the bad conduct discharge because the applicant was accepted into the Return to Duty Program.  Because the applicant successfully completed the Return to Duty Program, the bad conduct discharge was remitted on 6 September 1997. 

On 28 May 1997, the applicant applied to the Air Force Board for Correction of Military Records requesting restoration of his rank to the grade of staff sergeant and a two-year waiver for his high year of tenure (HYT) so he would have the opportunity to test for non-commissioned officer status to meet HYT qualifications.  On 16 September 1997, the Board denied the applicant’s request for grade restoration; however, they did approve a HYT waiver to allow the applicant to have sufficient time to compete for promotion to the grade of staff sergeant.

On 27 May 1998, the applicant was tried by a general court‑martial for charges of larceny, in violation of Article 121 of the UCMJ for the offense of shoplifting at the Base Exchange.  The applicant pled guilty and was found guilty.  The military judge sentenced the applicant to receive a bad conduct discharge, be confined for 9 months, and be reduced in grade to airman basic.  On 26 June 1998, the convening authority approved the sentence.  On 24 November 1998, the Air Force Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The U.S. Court of Appeals for the Armed Forces denied the applicant’s petition for a grant of review on 17 March 1999.  The applicant was separated with a bad conduct discharge on 16 April 1999.  The applicant had served 9 years, 1 month, and 27 days on active duty.  His time lost was 1086 days due to military confinement.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states the applicant was given a rare opportunity to return to the Air Force instead of being discharged after his first offense.  However, the applicant committed the same serious offense a second time after rehabilitation.  As such, a general court-martial was an appropriate forum.  The maximum punishment authorized for the offense of which the applicant ultimately was convicted was a dishonorable discharge, confinement for five years, forfeiture of all pay and allowances, and reduction to the grade of airman basic (E-1).  The sentence he received was well within the legal limits and the bad conduct discharge was appropriate punishment for the offense committed.  

While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant did not serve honorably.  There are consequences for criminal behavior and the court members, convening authority, and the Air Force Court of Criminal Appeals believed a bad conduct discharge was an appropriate consequence that accurately characterized his military service and his crime.  JAJM believes it would be unjust to change that characterization to one that hundreds of thousands of airmen, who have served honorably, also carry.  The applicant was given a second chance to separate with an honorable discharge; however, he failed himself and the Air Force.  The applicant has provided no evidence of an error or injustice related to the sentence.  He also fails to present sufficient evidence to warrant upgrading the bad conduct discharge, and does not demonstrate an equitable basis for relief.  The 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 the applicant on 11 April 2003 for review and comment.  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 probable error or injustice.  The applicant’s bad conduct discharge had its basis in his trial and conviction by a general court-martial and he has provided no evidence showing that the sentence exceeded the maximum punishment allowable based on the offense of which he was convicted.  As to clemency, we do not believe that favorable consideration of this case on that basis is warranted.  Generally, this Board may favorably consider a request for clemency upon the submission of evidence by an applicant showing he or she has overcome the behaviors that led to the contested separation and that he or she has exhibited the characteristics of good citizenship over an extended period of time.  In this case, based on the short period of time that has elapsed since his separation, we are not inclined to exercise clemency at this time.  Accordingly, the applicant’s request is not favorably considered. 

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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 this application in Executive Session on 18 June 2003, under the provisions of AFI 36-2603:

	Vice Chair
	Member
	Member

The following documentary evidence for AFBCMR Docket Number BC-2003-00381 was considered:

     Exhibit A.  DD Forms 149, dated 25 Jan 03.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, AFLSA/JAJM, dated 26 Mar 03.
     Exhibit D.  Letter, SAF/MRBR, dated 11 Apr 03.

                                  
                                  Vice Chair