RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2003-01656
		
		COUNSEL:  NONE

		HEARING DESIRED:  YES

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APPLICANT REQUESTS THAT:

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

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APPLICANT CONTENDS THAT:

It has been after 3 to 10 years since his discharge, and he would like to have veteran benefits or reenlist.

In support of his request, applicant provided copies of DD Form 214 from active duty.

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

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force as an airman basic on 5 September 1986.  The applicant, then an airman basic, was assigned to the ---- Civil Engineering Squadron in transitional status, pending an administrative discharge for minor disciplinary infractions under AFR 39-10.  On 2 June 1990, the applicant was released from duty for an appointment and failed to return to work on that day.  He did not report for duty for the next three days.  His regular unit, Air Force Office of Special Investigations, was notified of the absence.  The applicant’s dormitory roommate reported that the applicant had packed and departed on the evening of 26 June 1990.  On 28 June 1990, the applicant contacted his commander and was ordered to report for duty on the following day at 0800.  He did not report and efforts to locate him failed.  During a traffic stop on Baltimore-Washington Parkway, U.S. Park Police caught up with the applicant on 17 October 1990.  Identified as a deserter, he was turned over to military law enforcement and entered into pre-trial confinement.  During his pre-trial hearing, the applicant attempted to escape military control, in the process biting a security forces officer.  

On 6 December 1990, the applicant was tried at a general court-martial at ---- Air Force Base, ---.  The applicant was charged with desertion, attempted escape from confinement while attending a pretrial confinement hearing, and assault upon an NCO in the execution of his Air Force Security Police duties, in violation of Articles 85, 80, and 128, UCMJ, respectively.  The applicant chose to be tried by members, pled guilty to all charges and specifications, and was found guilty.  The members sentenced the applicant to a dishonorable discharge, confinement for nineteen months, and forfeiture of all pay and allowances.  On 14 February 1991, the convening authority approved the sentence, but reduced confinement to fifteen months pursuant to a pretrial agreement.

Because his approved sentence included a dishonorable discharge, the applicant’s convictions were reviewed by the United States Air Force Court of Military Review.  On 15 October 1992, the Air Force Court of Military Review affirmed the findings of guilty and the sentence, holding that the plea of the attempted escape was not improvident, that the military judge made no error computing the pretrial confinement credit and that the sentence was not inappropriately severe.  The applicant appealed to the U.S. Court of Military Appeals.  On 26 April 1993, the U.S. Court of Military Appeals denied the applicant’s petition for review.  The applicant was separated with a dishonorable discharge on    10 June 1993.   He served 6 months and 9 days of total active military service.

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AIR FORCE EVALUATION:

ALSA/JAJM recommends denial and states that at the time of the court-martial, the applicant was 22 years old and had over three years of service.  His service had been dotted with minor disciplinary infractions-missing appointments, lateness for duty, dereliction of duty.  His commander was proceeding with an administrative discharge.  The applicant had merely to wait out the discharge process to have his general discharge, when he went absent without leave.  The extent of the applicant’s subsequent misconduct is detailed in a three-page Stipulation of Fact.  The applicant, his defense counsel and the government counsel signed the stipulation as a true account of the events, which led to the court-martial.  The maximum punishment authorized for the offenses for which the applicant was convicted was a dishonorable discharge, confinement for seven years and forfeiture of all pay and allowances.  The applicant was already an airman basic, so no reduction in rank was possible.  The sentence was well within the legal limits and was an appropriate punishment for the offenses committed.  

There is no legal basis for upgrading 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.  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.  These matters were considered in review of the sentence.  The applicant was thus afforded all rights granted by statue and regulation.  In this case, the convening authority reduced the applicant’s sentence to confinement.  The applicant provides no compelling rationale to mitigate the approved dishonorable discharge given the circumstances of the case.

While clemency is an option, there is no reason for the Board to exercise clemency in this case.  The applicant did not serve this enlistment honorably.  The tone of his application suggests that, to this day, he has not comprehended the gravity of his actions. At the time of his desertion, he was pending an administrative discharge.  Instead, the applicant faces the consequences for criminal behavior—the military judge, convening authority and the appellate courts believed a dishonorable discharge was an appropriate consequence that accurately characterized his military service and his crime.  The applicant presents insufficient evidence to warrant upgrading the dishonorable discharge, and does not demonstrate an equitable basis for relief.  In addition, his request, made more than three years after his conviction and discharge is untimely. 

JAJM complete evaluation, with attachment, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A complete copy of the Air Force evaluation was forwarded to the applicant on 25 July 2003, for review and comment 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 error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case.  However, after thorough review of the evidence of record, it is our opinion that the comments of the office of the Judge Advocate General are supported by the evidence of record.  We find no evidence of error in this case and after thoroughly reviewing the applicant's submission, we do not believe he has suffered from an injustice.  We considered upgrading his discharge on the basis of clemency; however, due to the serious nature of the offenses committed, we believe that the characterization of his discharge was proper and in compliance with the appropriate directives.  In the absence of persuasive evidence to the contrary, we find no basis upon which to favorably consider this application.

4.	The applicant's case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved.  Therefore, the request for a hearing 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 Docket Number BC-2003-01656 in Executive Session on 3 September 2003, under the provisions of AFI 36-2603:

Ms. XXXX and Mr. XXXX voted to deny the appeal; Mr. XXXX recused himself from voting.

The following documentary evidence was considered:

	Exhibit A.	DD Form 149, dated 15 May 03, w/atchs.
	Exhibit B.	Available Master Personnel Records.
	Exhibit C.	Letter, AFLSA/JAJM, dated 14 Jul 03.
	Exhibit D.	Letter, SAF/MRBR, dated 25 Jul 03.

                                   Panel Chair