RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2006-01739
		INDEX CODE:  105.00, 110.00

		COUNSEL:  NONE

		HEARING DESIRED:  NO

MANDATORY CASE COMPLETION DATE:  10 DEC 07

_________________________________________________________________

APPLICANT REQUESTS THAT:

1.  He receive a Presidential pardon removing his court-martial conviction and bad conduct discharge (BCD) from his record.

2.  He be reinstated to active duty at the highest rank held.

_________________________________________________________________

APPLICANT CONTENDS THAT:

His sentence was overly harsh as it included a BCD, six months confinement, and a reduction to the grade of airman basic.  The military court convicted him of larceny of $6,777 by fraudulently receiving Basic Allowance for Quarters (BAQ) at the with dependents rate and refusing to support his spouse.  In a separate action, Finance required him to repay over $17,000 for overpayments.  Since the court stated he was only overpaid $6,777 and handed down a sentence on that fact, the reparations made the sentence even greater, above and beyond the sentence handed down by the court.  He repaid nearly three times what he was convicted of stealing and still had his military career ruined and his personal life made more difficult by a felon conviction.  He did not have an intent to steal.  He was married at the time and was being paid his with dependents BAQ and honestly thought he was entitled since, even though his wife who had decided to live away from him refused his support.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

The applicant having served 19 years and 24 days on active duty was discharged with service characterized as bad conduct under the provisions of General Court-Martial Order No. 14.  Dates of time lost reflect 4 January 1995 through 28 June 1995.

The applicant was convicted by a general court-martial for the following:

Charge 1:  Article 132

	  Specification 1:  He did, on or about 12 May 1993 by preparing an AF Form 594, Authorization to Start, Stop, or Change BAQ, Rent Plus, and/or Variable Housing Allowance (VHA) for presentment for approval or payment, make a claim against the United States, in the amount of $18,777.94, for BAQ at with dependent rate and VHA at with dependent rate, which claim was false and fraudulent in the amount of $6,005.50 in that it certified that said he provided adequate support for his dependent wife, was known by the applicant to be false and fraudulent.  The applicant pleaded not guilty.

	  Specification 2:  He did, between on or about 13 May 1993, and on or about 30 November 1993 by preparing a DFAS Form 704, Recertification Statement, BAQ, COLA, FSA, OHA, and/or VHA, for presentment for approval or payment, make a claim against the United States in the amount of $4,293.93, for BAQ with dependent rate and VHA at with dependent rate, which claim was false and fraudulent in the amount of $1,375.09 in that it certified that he provided adequate support for his dependent wife and that his dependent wife resided with him and was known to be false and fraudulent.  The applicant pleaded not guilty.

Charge II: Article 107

	  Specification 1:  He did, on or about 28 September 1990, with intent to deceive, sign an official record, to wit, AF Form 594, was false in that it certified that the applicant provided adequate support for his dependent wife, was known to be false and fraudulent.  The applicant pleaded not guilty.

	  Specification 2:  He did, on or about 13 May 1993, with intent to deceive, sign an official record to wit a DFAS Form 704, which record was false in that it certified that he provided adequate support for his dependent wife, that his dependent wife resided with him, and that his rent payment was $9,999.99 and was then known to be false.  The applicant pleaded not guilty.

	  Specification 3:  He did, on or about 22 December 1993, with intent to deceive, make to two Special Agents, an official statement, to wit:  That when he and his wife separated she told him she didn’t want him to support her, which statement, was totally false, and was then known to be false.  The applicant pleaded guilty.

Charge III:  Article 121

	  Specification:  He did, on or about 28 September 1990 and on or about 30 November 1993, steal approximately $7,380.59, military property of the United States Air Force.  He pleaded guilty, except for the words and figures:  “28 September 1990” and “$7,380.59” and substituting therefore, respectively the words and figures:  “1 April 1991” and $6,269.44.”  He pleaded not guilty, except for the words and figures:  “28 September 1990” and “$7,380.59” and substituting therefore, respectively the words and figures:  “1 April 1991” and “$6,269.44.”

Charge IV:  Article 134

	  Specification 1:  A married man did, on divers occasions between, on or about 23 August 1993 to on or about 1 July 1994, wrongfully have sexual intercourse with another woman not his wife.  The applicant pleaded not guilty.

	  Specification II:  He did, from about 1 November 1991 to 1 July 1994, wrongfully cohabitate with another woman, not his wife.  The applicant pleaded not guilty.

The sentenced was adjudged on 4 January 1995.  He was sentenced to a bad conduct discharge, confinement for seven months, and a reduction in grade from technical sergeant to airman basic.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the applicant’s BCD accurately reflects the character of his service.  The applicant stole $6,294.44 from the Air Force by claiming the BAQ at the with dependent rate and VHA at the with dependent rate at a time he was not providing support to his dependant wife.  The larceny started when the applicant had been on active duty 14 years and ended when applicant had 17 years of service.  With his length of service he would have been familiar with the regulations related to the “with dependent rate.”  The maximum punishment authorized for the offenses for which the applicant was convicted was a dishonorable discharge, confinement for 10 years, and total forfeiture of pay and allowances.  The sentence was well within the legal limits and was a fitting punishment for the offenses committed.  The sentence was appropriate for the offenses and the requested relief, an upgrade in discharge characterization is inappropriate given the seriousness of the applicant’s crimes.  Setting aside the conviction and returning the applicant to active duty is inappropriate given the nature of the applicant’s crimes and discharge.  The applicant has failed to identify the existence of any error or injustice related to his court-martial and resulting sentence.  Neither has he presented any facts or circumstance indicating that an injustice occurred.

The JAJM complete evaluation is at Exhibit C.

AFPC/DPPRS recommends denial.  DPPRS states based on the documentation on file in the master personnel records the discharge was consistent with the procedural and substantive requirements of the discharge regulation.  The discharge was within the discretion of the discharge authority and the applicant did not submit any evidence or identify any errors or injustices that occurred in the discharge processing.  Additionally, he did not provide any facts warranting a change to his bad conduct discharge.

The DPPRS complete evaluation is at Exhibit D.

AFPC/JA states upon a careful review of the allegations and evidence presented by the applicant, JA concurs with the advisories provided by JAJM and DPPRS.

The JA complete evaluation, with attachment, is at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

On 18 August 2006, the evaluations were forwarded to the applicant for review and comment within 30 days (Exhibit F).  As of this date, this office has received no response.

_________________________________________________________________

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 an injustice.  Title 10 USC, Section 1552, provides that the Air Force Board for Correction of Military Records may correct any military record to correct an error or remove an injustice.  As such, applicant's request for a Presidential pardon is not possible since such action is not within the purview of this Board's authority.  However, applicant may apply for a Presidential pardon under the provisions of Title 28, Code of Federal Regulations, Section 1.1.  For courts-martial convened within the Air Force, pardon applications should be sent to AFLOA/JAJR, Bolling Air Force Base.  In regard to his request to be reinstated to active duty, we agree with the opinions and recommendations of the Air Force offices of primary responsibility and adopt their rationale as the basis for our conclusion that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Therefore, we find no compelling basis to recommend granting the relief sought.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of an error or an injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

_________________________________________________________________

The following members of the Board considered AFBCMR Docket Number BC-2006-01739 in Executive Session on 21 September 2006, under the provisions of AFI 36-2603:

The following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 2 Jun 06.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, AFLOA/JAJM, dated 31 Jul 06.
   Exhibit D.  Letter, AFPC/DPPRS, dated 7 Aug 06.
   Exhibit E.  Letter, AFPC/JA, dated 14 Aug 06, w/atchs.
   Exhibit F.  Letter, SAF/MRBR, dated 18 Aug 06.