RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00278
		INDEX CODE:  110.02

	XXXXXXX XX	COUNSEL: 

	XXXXXXX	HEARING DESIRED: YES

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APPLICANT REQUESTS THAT:

His bad conduct discharge (BCD) be upgraded to general (under honorable conditions) or honorable.

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APPLICANT CONTENDS THAT:

His problems were brought on by a terrible illness which went untreated for quite sometime.  He states after a diagnosis of rheumatic fever with carditis, pneumonia, and heart murmur, he was evaluated for a medical discharge and his dream of a military career crashed.

His mother became ill and he made a stupid mistake by deciding to go home to see her, even after his request to see her had been denied because he was still under medical care.

Subsequent to this, he escaped confinement which eventually led to his court-martial and discharge.

In support of his appeal, applicant submitted a copy of DD Form 214, Report of Separation from the Armed Forces of the United States; a letter to his member of congress, dated 25 Apr 01 and other supporting documents (including excerpts from his DVA Disability Claim and excerpts from his military personnel and military medical records).

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

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STATEMENT OF FACTS:

Prior to enlisting in the Air Force, applicant served honorably in the US Army, from 5 Jan 54 until 10 Jul 54.  Applicant enlisted in the Regular Air Force on 28 Dec 54 for a period of four years in the grade of airman third class.  

On 29 Jun 55, applicant was convicted by Summary Court-Martial for two failures to wear his uniform properly (no name tag and no stripes) and sleeping in class.  His punishment consisted of reduction in grade to airman basic and 30 days of confinement at hard labor (suspended for 45 days), and forfeiture of $55.

On 1 Sep 55, applicant was convicted by Special Court-Martial for being absent without leave (AWOL) from on or about 16 Jul 55 until on or about 11 Aug 55.  His punishment consisted of four months of confinement at hard labor and forfeiture of $50 per month for four months.

On 21 Oct 55, he was convicted by General Court-Martial for escaping from lawful confinement in the base guardhouse on or about 6 Sep 55.  He was sentenced to a bad conduct discharge, confinement at hard labor (CHL) for six months, and forfeiture of $55 per month for six months.

On 12 Mar 56, he was discharged under the provisions of AFR 39-18, with a bad conduct discharge in the grade of airman basic.  He was credited with 6 months and 19 days of active service during this period (excludes 236 days of lost time due to periods of AWOL and confinement).  

Pursuant to the Board’s request, the Federal Bureau of Investigation, Clarksburg, West Virginia, provided an investigative report which is attached at Exhibit C.

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AIR FORCE EVALUATION:

AFLSA/JAJM reviewed this application and recommended denial.  Applicant was tried by a general court-martial on 21 Oct 55.  He was charged with escape from lawful confinement, in violation of Article 95, Uniform Code of Military Justice (UCMJ).  He was found guilty in a trial with members.  The court sentenced him to receive a bad conduct discharge, confinement at hard labor for six months, and forfeiture of $55 per month for six months.

On 21 Nov 55, the convening authority approved the sentence as adjudged except for that portion regarding execution of the bad conduct discharge that was suspended until 21 Feb 56.  The applicant’s conviction and sentence were affirmed.

They opined there is no legal basis for upgrading applicant’s discharge.  The appropriateness of his 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 assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court and the convening authority.  He was afforded all rights granted by statute and regulation.  The maximum punishment authorized for the offense for which the applicant was convicted was a dishonorable discharge, confinement for five years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade.  He provides no compelling rationale to mitigate the approved BCD 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 record reveals that the applicant was treated with leniency in an earlier court-martial proceeding by not being discharged.  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.  He has provided no evidence of a clear error or injustice related to the sentence.  He presents insufficient evidence warranting upgrading the BCD, and does not demonstrate an equitable basis for relief.

A complete copy of the evaluation is at Exhibit D.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant explained the circumstances surrounding the misconduct which led to his courts-martial actions and subsequent discharge.  Additionally, he also explained the circumstances surrounding the events cited in the FBI Report of Investigation and the final disposition.

Applicant’s complete response, with attachments, is at Exhibit G.

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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.  The comments of the Office of the Air Force Legal Services Agency are supported by the evidence of record.  We took notice of the applicant's complete submission in judging the merits of the case, including his personal statements and letters of reference submitted in his behalf.  We are not convinced by the evidence submitted that applicant’s medical problems contributed to his misconduct.  Furthermore, in view of the repeated misconduct during his short period of service that resulted in his court-martial actions and subsequent discharge and the contents of the FBI Report of Investigation, we are not persuaded that an upgrade of the characterization of the applicant’s service on the basis of clemency is warranted.  Therefore, based on the available evidence of record, the applicant’s request for upgrade of his discharge is not favorably considered.

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 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 AFBCMR Docket Number BC-2004-00278 in Executive Session on 3 August 2004, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 6 Feb 04, w/atchs. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.
    Exhibit D.  Letter, AFLSA/JAJM, dated 26 Apr 04.
    Exhibit E.  Letter, SAF/MRBR, dated 7 May 04.
    Exhibit F.  Letter, AFBCMR, dated 10 Jun 04, w/atchs.
    Exhibit G.  Letter, Applicant, dated 30 Jun 04, w/atchs.

                                   Panel Chair