RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-00676
		INDEX CODE:  A68.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

The type of court-martial he received be changed.

His bad conduct discharge (BCD) be upgraded.

(Examiner's Note:  Although not specifically requested, it appears that the applicant also desires that his BCD be upgraded).

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APPLICANT CONTENDS THAT:

He was given a general court-martial while three other airmen were given special courts-martial and received lesser punishments for the exact same charges of falsifying their travel vouchers.

His discharge was inequitable because his punishment did not fit the crime.

Because of his immaturity at the time of the crime, he asks that the Board strongly consider him for a change of his records so that he may continue on with his life and become a productive member of the work force.  He has never before had a problem in the military concerning his work performance.  

In support of his appeal, the applicant provided a copy of his separation document.

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 24 Jan 94 for a period of four years in the grade of airman.  He received two Enlisted Performance Reports (EPRs) in which he received overall ratings of 3 and 1 (1-5 (Highest)).  Both reports were referral reports.

On 5 Nov 96, the applicant was tried by general court-martial for conspiring with three other airmen to steal military property in the amount of $100.00; two specifications of filing a false claim against the United States in the amount of $975.00, in that he over-claimed his rental expenses; signing a false official record with intent to deceive, in that he overclaimed the rental expenses he had actually paid by about $975.00; stealing military property of a value over $100.00; unlawfully striking his wife in the face with his hand; and, of dishonorable failure to pay a just debt incurred on his government charge card.  He was not found guilty of striking his wife, but was found guilty of all other charges and specifications.  The applicant was sentenced to a BCD, confinement for six months, and forfeitures of all pay and allowances.  On 23 Jan 97, the convening authority approved the sentence as adjudged but waived $200 per month of the approved forfeitures pursuant to Article 58a, Uniform Code of Military Justice (UCMJ) and directed that the waived amount be paid to the applicant's wife for her benefit and that of their minor child.

On 1 Mar 99, the approved sentence of the general court-martial having been affirmed, the applicant’s discharge was ordered into execution.  He was discharged on that date with a BCD.  He was credited with five years, one month, and eight days of active service.

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AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial.  They noted the applicant's contentions that he and his three co-conspirators were charged with “the same exact offenses”; that they, unlike the applicant, were tried at special (rather than general) courts-martial; and that each co-conspirator received lesser punishments than he did.  Accordingly, he claimed that he was unfairly “treated differently than the other individuals” involved and that difference (in some undefined way) has cost him “the ability to find gainful employment.”  According to AFLSA/JAJM, the applicant’s claims were incorrect.  At least one other conspirator was tried at a general court-martial and received a longer sentence of confinement (eleven months) than the applicant.  At least two co-conspirators, like the applicant, received BCDs.  Of the four conspirators, the applicant alone was charged with unrelated misconduct--the additional offenses of assault and dishonorable failure to pay a just debt.

Factual inaccuracies notwithstanding, AFLSA/JAJM indicated that the applicant’s chief contention appears to be that his case was unfairly referred to a general (not special) court-martial.  However, he did not state how the choice of that particular forum unjustly or even negatively impacted his situation.  The Manual for Courts-Martial, Rule for Courts-Martial 306, requires that a commander consider a member’s service record, conduct, and the circumstances of the suspected offenses before deciding on the appropriate forum for disposition of a case.  After considering these factors, Rule for Courts-Martial 306(c) gives each commander the discretion to dispose of alleged offenses by taking no action, handling the case administratively, notifying the offender of his intent to impose nonjudicial punishment under Article 15, or preferring court-martial charges. The convening authority has similar obligations and authority as well.

Although procedural differences exist, the most significant difference between a special and a general court-martial is the quantum of punishment that each is authorized to impose for a particular offense.  With respect to the charges preferred against the applicant, the maximum punishments theoretically authorized at a general court-martial were substantially greater than those authorized for the same offenses at a special court-martial.  However, the actual sentence about which the applicant complains--a bad conduct discharge and six months confinement--was within the sentencing authority of both special and general courts-martial.  The applicant did not mention the only aspect of his sentence which would have been different at a special court-martial--forfeitures.  The applicant was sentenced to forfeit all his pay and allowances.  At a special court-martial, the maximum forfeiture that may be adjudged is two-thirds pay per month for six months.  In clemency, the applicant asked for relief to help his wife pay the bills.  In response, the convening authority waived $200 pay per month for the benefit of the applicant’s family.  The applicant did not contend that he suffered an injustice as a result of the sentence to forfeitures.

AFLSA/JAJM stated that while the applicant apparently feels that his sentence was too harsh, the maximum punishment authorized for the offenses was a dishonorable discharge, 35 years and 6 months confinement and total forfeitures.  The military judge considered the facts and circumstances of the offense and the applicant’s overall military record.  That record included letters of reprimand, two Article 15’s, and a prior civilian conviction.  The military judge also considered all the evidence of extenuation and mitigation presented when deciding on an appropriate sentence.  The applicant’s sentence was tailored to him as an individual and to the facts and circumstances of his case.  Each person is unique, and each case is unique.  The applicant’s background, prior misconduct, and individual charges were not identical to that of his co-conspirators.  By most objective standards, they may well have been worse.  Notwithstanding that fact, the applicant (despite his factually inaccurate assertions to the contrary) was not the only conspirator tried at a general court-martial and not the only one to receive a bad conduct discharge.  Clearly, he was not singled out for unjust and disparate treatment.  Standing alone, his sentence was not unduly harsh given his misconduct and his background.  Compared to his fellow conspirators’ sentences, the applicant’s sentence was not even the most severe.

In any event, 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. The applicant had the assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court and the convening authority.  The applicant was granted some clemency in the form of a partial waiver of forfeitures.  The applicant was thus afforded all rights granted by statute and regulation.  The applicant provided no compelling rationale to mitigate the approved punitive discharge given the circumstances of the case.

AFLSA/JAJM indicated that the applicant conspired with other military members to defraud the government and steal military property.  He enriched himself at the government’s expense at the same time he dishonorably failed to pay a just debt incurred on his government credit card.  For those offenses (and the alleged assault on his wife), the applicant was tried by a general court-martial.  The convening authority found that forum appropriate based on the applicant’s prior misconduct, the failure of prior rehabilitative and other intermediate disciplinary measures, and the breadth and seriousness of the offenses alleged.  Given the maximum punishment authorized, the sentence was well within the legal limits and was appropriate punishment for the offenses committed.

According to AFLSA/JAJM, the military judge and the Air Force Court of Criminal Appeals were convinced of the applicant’s guilt beyond a reasonable doubt.  He did not then and does not now claim factual innocence or legal error.  His sentence was appropriate.  The applicant did not serve this enlistment honorably.  There are consequences for criminal behavior.  The military judge, convening authority and the appellate court believed a BCD was an appropriate consequence that accurately characterized his military service and his crimes.  The applicant has provided no evidence of a clear error or injustice related to the sentence.  He presented no evidence to warrant upgrading the BCD, nor has he demonstrated an equitable basis for relief.

A complete copy of 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 16 May 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 note that this Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction.  Rather, in accordance with Title 10, United States Code, Section 1552(f), actions by this Board are limited to corrections to the record to reflect actions taken by the reviewing officials and action on the sentence of the court-martial for the purpose of clemency.  There is nothing in the evidence provided, other than the applicant’s unsubstantiated allegations, which would lead us to believe that a change to the actions of any of the reviewing officials is warranted.  We also find no evidence which indicates that the applicant’s service characterization, which had its basis in his conviction by general court-martial and was a part of the sentence of the military court, was improper or that it exceeded the limitations set forth in the UCMJ.  Furthermore, because of the short duration since the applicant’s separation and the serious nature of the offenses committed, we do not find upgrading the applicant’s BCD based on clemency is appropriate in this case at this time.  In view of the foregoing, we agree with the opinion prepared by AFLSA/JAJM and adopt their rationale as the basis for our decision that the applicant has failed to sustain his burden of establishing that he has suffered either an error or an injustice.  Accordingly, we find no compelling basis to recommend favorable consideration of 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 AFBCMR Docket Number BC-2003-00676 in Executive Session on 22 Jul 03, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 10 Mar 03, w/atchs.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 30 Apr 03.
    Exhibit D.  Letter, SAF/MRBR, dated 16 May 03.

                                   
                                   Panel Chair