RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-00960
		INDEX CODE:  110.02
		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His court-martial conviction be overturned, his rank and retirement be restored, and his bad conduct discharge be upgraded to honorable.

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APPLICANT CONTENDS THAT:

He did not commit the crimes he was charged with.  He “gave his life (sic) for this country without reservation” and did everything he was asked to do.  He served in the Gulf War (two tours), Korea, Japan, and other assignments.  He did not deserve this treatment and wants justice. 

In support of the application, the applicant submits his application.  The applicant's complete submission is at Exhibit A.

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STATEMENT OF FACTS:

On 19 August 1980, the applicant enlisted in the Regular Air force at the age of 17 in the grade of airman basic (E-1) for a period of 6 years.  He was progressively promoted to the rank of Staff Sergeant (E-5) with a date of rank of 1 April 1986.

The following is a resume of Airman/Enlisted Performance Reports (APR/EPRs), commencing with the report closing 18 August 1981.

	PERIOD ENDING	PROMOTION RECOMMENDATION

	18 August 1981		8
	11 February 1982		8
	18 October 1982		9
	21 March 1983 (SrA)		9
	21 March 1984 (Sgt)		9
	21 March 1985		9
	19 July 1985		9
	1 December 1985		9
	
	29 April 1986 (SSgt)		9
	29 April 1987		8
	31 January 1988		9
	28 February 1989		7
	28 June 1989 		9
	28 June 1990		3
	28 June 1991		4
	28 June 1992		5
	28 June 1993		4
	15 January 1994		4
	24 October 1994		3

Information provided by the Air Force office of primary responsibility indicates that the applicant was charged with one specification of dereliction of duty in violation of Article 92, UCMJ; one specification of making a false official statement in violation of Article 107, UCMJ; and one specification of larceny (theft) on divers occasions between March 1991 and May 1994, in violation of Article 121, UCMJ.  The record indicates the applicant continued to collect BAQ/VHA for approximately 38 months after he and his wife separated.  He did not live with his wife or provide support to her during the relevant time period.  

Before a General Court-Martial on 25 October 1994, he pled not guilty, and was sentenced to a bad conduct discharge, confinement for eighteen months, forfeiture of $467.00 per month for 18 months, and reduction to the grade of airman.  On 9 March 1995, the convening authority approved the sentence as adjudged.  On 17 May 1986, the Air Force Court of Criminal Appeals affirmed the findings and the sentence as approved.  The United States Court of Appeals for the Armed Forces denied the applicants petition for review on 10 October 1996.

On 18 November 1996, the applicant was discharged with a bad conduct discharge.  He had served 14 years and 9 months on active duty.  He had 548 days of lost time due to confinement.

The remaining relevant facts pertaining to this application, extracted from the applicant’s military records, are contained in the letter prepared by the appropriate office of the Air Force at Exhibit C. 
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AIR FORCE EVALUATION:

AFLSA/JAJM recommends denial.  JAJM states there is no apparent error or injustice that requires the correction of the applicant’s court-martial record.  The applicant was convicted of the charges, and the evidence does not support the applicant’s contentions that he did not commit the offenses.  The accused pleaded not guilty but was found guilty, beyond a reasonable doubt, by the court-martial.  JAJM notes the maximum sentence for the crimes for which the applicant was convicted is a dishonorable discharge, forfeiture of all pay, and confinement for 10 years.  The sentence given the applicant was well within the legal limits and was appropriate punishment for the offense committed.  The applicant had the assistance of counsel.  JAJM opines the applicant provides no compelling rationale to mitigate the approved punitive discharge.  The military judge, convening authority and the appellate courts believed a bad conduct discharge was an appropriate consequence that accurately characterized his military service and his crimes.  JAJM’s evaluation, with attachments, is at Exhibit C.

In addition to the above, JAJM noted that the Board is not empowered to set-aside or reverse the findings of guilty by a court-martial.  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.  JAJM does not believe there is a basis for any relief as to the sentence of the military court in this case.

JAJM’s 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 for review and comment.  As of this date, this office has received no response (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 an error or injustice.  We are not persuaded by the evidence presented that the separation characterization received by the former member should be changed.  The former member's discharge was based on his trial and conviction by a general court-martial.  While law precludes us from reversing a court-martial conviction, we are authorized to correct the records to reflect actions taken by reviewing officials and to take action on the sentence of a military court based on clemency.  There is nothing in the available record that would cause us to disturb the actions of the reviewing officials or to warrant a correction of his records based on clemency.  In the absence of such evidence, 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 AFBCMR Docket Number BC-2004-00960 in Executive Session on 28 October 2004, under the provisions of AFI 36-2603:
The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 18 Apr 04.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Letter, AFLSA/JAJM, dated 26 May 04. w/atch.
	Exhibit D.  Letter, SAF/MRBR, dated 11 Jun 04.