RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-02219
		INDEX CODE:  110.02

		COUNSEL:  NONE

		HEARING DESIRED: NOT INDICATED

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APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded to under other than honorable conditions (UOTHC).

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APPLICANT CONTENDS THAT:

It has been over 20 years since his discharge and he has served the time for his mistakes as a kid.  He now has his commercial driver’s license (CDL) which requires a hazardous material (HAZMET) certification to drive a local truck.  However, his military discharge records are causing him problems.  

In support of his appeal, the applicant submits a letter from the Transportation Security Administration (TSA), dated 14 May 08.

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

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STATEMENT OF FACTS:

Based on available records, the applicant entered active duty on 8 Oct 80.  

On 18 Feb 87, applicant was tried by General Court-Martial.  He was charged with (Charge I) one specification of attempt, with premeditation, to commit murder of his military spouse, in violation of Article 80, Uniform Code of Military Justice (UCMJ), (on or about 27 Jun 86); (Charge II) one specification which, he willfully and maliciously set on fire, the on-base living quarters of his military spouse, valued at about $29,368, in violation of Article 126, UCMJ.  Applicant pled not guilty to Charge I and Charge II.  He was found guilty of Charge I.  He was sentenced to reduction in grade to airman basic (E-1), forfeiture of $438 per month for 10 years, confinement for 10 years, and a dishonorable discharge.  On 29 Jul 87, the sentence was affirmed.

On 21 Apr 89, applicant was discharged pursuant to the General Court-Martial Order, with a dishonorable discharge.  He was credited with 5 years, 10 months, and 6 days of active duty (excludes time lost for confinement from 14 Aug 86 to 21 Apr 89).

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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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.  We also find no evidence which indicates that the applicant’s service characterization, which had its basis in his conviction by special 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 Uniform Code of Military Justice (UCMJ).  We have considered applicant's overall quality of service, the special court-martial conviction which precipitated the discharge, and the seriousness of the offense to which convicted.  However, based on the evidence of record, we cannot conclude that clemency is warranted.  Moreover, it appears that he has not overcome the behavior traits which caused the discharge based on the report provided by the FBI.  In view of the above, we cannot recommend approval based on the current evidence of record.

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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-2008-02219 in Executive Session on 11 February 2009, under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 9 Jun 08. 
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  FBI Report of Investigation.

                                 								                                   Panel Chair