RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER:	BC-2008-02388 INDEX CODE:	110.02
XXXXXXXXXXXXXXXXX	COUNSEL:	NONE HEARING DESIRED:	NO

APPLICANT REQUESTS THAT:
His	bad	conduct	discharge	be	upgraded	to	a	general	(under honorable conditions) discharge.

APPLICANT CONTENDS THAT:
He did his time and admitted remorse for the victims of his offense. He did what had to be done to rectify his wrong and has done everything he can to show he’s a changed man. He admits what he did was wrong and a terrible mistake.

In support of his appeal, the applicant provides a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States.

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

STATEMENT OF FACTS:
On 31 March 1999, the applicant enlisted in the Regular Air Force at the age of 19 in the grade of airman basic. He was subsequently promoted to  the  grade  of  airman  (E-2).  On 23-25 January 2002, the applicant was tried by a general court- martial and charged with two specifications of larceny in violation of Article 121, Uniform Code of Military Justice (UCMJ); one specification of forgery in violation of Article 123, UCMJ; two specifications of uttering bad checks in violation of Article 123a, UCMJ; one specification of dishonorable failure to pay a just debt in violation of Article 134, UCMJ; one specification of attempted larceny in violation of Article 80, UCMJ; and one specification of conspiracy to commit larceny in violation of Article 81, UCMJ. The applicant pled not guilty to the offenses, but after being found guilty of all offenses by officer members, he was sentenced to a bad conduct discharge, confinement for one year, forfeiture of all pay and allowances, and reduction to the grade of airman basic (E-1). On 20 March 2002, the convening authority approved the sentence as adjudged,

but also tried to waive forfeitures for the benefit of the applicant’s dependent children. After appellate review in the case, the Court of Appeals for the Armed Forces returned the case for new action to fix the issue of waiver of forfeitures. Other than that issue, both courts of appeal affirmed the findings and sentence in the case. After the findings and sentence became final and conclusive under Article 76, UCMJ, the applicant’s discharge was executed on 1 March 2007. He was discharged effective 22 March 2007 with a bad conduct characterization of service. He served 2 years, 7 months, and 25 days on active duty and had 338 days of lost time.

AIR FORCE EVALUATION:
AFLOA/JAJM recommends denying the applicant’s request to upgrade his discharge. JAJM states that under Title 10 United States Code (USC) Section 1552(f), which amended the basic corrections board legislation, the Board’s ability to correct records related to courts-martial are limited. Specifically, section 1552(f)(1) permits the correction of a record to reflect actions taken by a reviewing authority under the UCMJ. Additionally, section 1552(f)(2) permits the correction of records related to action on the sentence of courts-martial for the purpose of clemency. Apart from these two limited exceptions, the effect of section 1552(f) is that the Board is without authority to reverse, set aside, or otherwise expunge a court-martial conviction that occurred on or after 5 May 1950 (the effective date of the UCMJ).

It is JAJM’s opinion that while clemency may be granted under Title 10 USC 152(f)(2), it is not warranted in this case. The applicant provides  no justification for his request. The applicant has not submitted so much as a character statement attesting to any improvement in his behavior over the past six years. At trial, the applicant and his defense counsel presented evidence in extenuation and mitigation for the members’ consideration prior to their sentencing decision. The members weighed all the information presented in findings and sentencing to craft a punishment uniquely suited to address the applicant and his criminal conduct. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority when the facts and circumstances were fresh. Rules for Courts-Martial 1003 (b)(8)(B) indicates that a bad-conduct discharge “is designed as punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature.” The applicant’s sentence of a bad conduct discharge, forfeitures, and reduction in grade was well within the legal limits and was an appropriate punishment for the very serious offenses committed. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. All rights of a veteran under the laws administered by the Secretary of Veterans Affairs are barred where the veteran was

discharged or dismissed by reason of the sentence of a general courts-marital. It would be offensive to all those who served honorably to extend the same benefits to someone who committed crimes such as the applicant’s while on active duty.

The JAJM evaluation is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
A copy of the Air Force evaluation was forwarded to the applicant on 19 September 2008 for review and response within 30 days (Exhibit D). 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 timely filed.
3.	Insufficient relevant evidence has been presented to demonstrate the existence of an error or an injustice. We took notice of the applicant's complete submission in judging the merits of the case; however, we agree with the opinion and recommendation of the Air Force office of primary responsibility and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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.

The following members of the Board considered this application in Executive Session on 30 October 2008, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member
The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2008-02388:

Exhibit A.	DD Form 149, dated 11 Jul 08, w/atch. Exhibit B.	Applicant's Master Personnel Records. Exhibit C.	Letter, AFLOA/JAJM, dated 29 Aug 08. Exhibit D.	Letter, SAF/MRBR, dated 19 Sep 08.