RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS
IN THE MATTER OF:	DOCKET NUMBER: BC-2008-02498 INDEX CODE:	110.00

COUNSEL:	NONE HEARING DESIRED:	YES

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

APPLICANT CONTENDS THAT:
His sentence and judgment was too harsh for the charges. There are records of other men who have done far worse. His present day character and life accomplishments do not reflect the same person he was believed to be at the time of his court-martial. He never saw or faced the men who decided his fate.

As a man of faith and active in his church, an author of a book, a retired nursing assistant, and a sponsor of a child from the Philippines, he has done many things in his life that warrant reconsideration of the discharge from his court-martial. He has lived with this type of discharge for over 38 years.

In support of his request, applicant provided a certificate of ordination, a certificate of pastor’s appointment, a letter of support from his wife, and various other certificates and documents.

The applicant's complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:
The applicant enlisted in the Air Force on 24 Jun 66 and was progressively promoted to the rank of airman first class.  On
30 Dec 69, he was tried by special court-martial and he was charged with 11 specifications of wrongfully and unlawfully uttering checks with the intent to defraud and one specification of being absent without authority (AWOL). He pled not guilty to the charges and specifications and testified at trial that he believed his wife had put $400.00 of an insurance settlement she received into their joint account; and this would have covered the checks he wrote. He was found guilty of all charges and specifications and sentenced to a bad conduct discharge (BCD), confinement at hard labor for six months, and forfeiture of

$50.00 pay per month for six months. Upon completion of the appellate review process, applicant was discharged with a BCD on
23 Jun 70. He was credited with 2 years, 11 months, and 27 days of active military service. He had a total of 392 days of lost time due to AWOL and confinement.

On 8 Sep 82, applicant applied to the Air Force Discharge Review Board (AFDRB) requesting that his BCD be upgraded. After review of the evidence of record, the AFDRB concluded that the discharge was consistent with the procedural and substantive requirements of the Uniform Code of Military Justice and that the individual was provided full due process. The Board concluded that the applicant’s discharge should not be changed. The Board further concluded that neither the evidence of record nor that provided by the applicant substantiated an inequity or impropriety which would justify a change of discharge. A copy of the AFDRB findings is attached at Exhibit B.

Pursuant to the Board’s request on 15 Oct 08, the Federal Bureau of Investigation (FBI), Clarksburg, West Virginia, provided a copy of an Investigative Report, which is attached at Exhibit C.

On 24 Oct 08, a copy of the FBI report was forwarded to the applicant for review and comment within 30 days. At the same time the AFBCMR staff offered the applicant an opportunity to provide information pertaining to his activities since leaving the service (Exhibit D).

AIR FORCE EVALUATION:
AFLOA/JAJM reviewed this application and recommends denial. The application is untimely and the applicant’s contentions are without merit, there is no basis for upgrading the bad conduct discharge.

While clemency may be granted under 10 U.S.C., 1552 (f)(2), it is not warranted in this case. A BCD is designed as a punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature. A BCD is more than merely a service characterization, but as defined under the Rules it is a punishment for the crimes the applicant committed while a member of the Armed Forces. The applicant’s sentence to a BCD, forfeiture of $50 pay per month for six months, and confinement for six months was well within the legal limits and was an appropriate punishment for the offenses committed. To overturn this punishment now would require the Board to substitute its judgment for that rendered by the court and the convening authority over 38 years ago when the facts and circumstances were fresh. Additionally, clemency in this case would be unfair to those individuals who honorably served their country while in uniform. Congress’ intent in setting up the Veterans’ Benefit Program was to express thanks to veterans’ personal sacrifices, separations from family, facing hostile enemy action and suffering financial hardships. 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 court-martial. 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 complete JAJM evaluation is at Exhibit D.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:
On 19 Sep 08, a copy of the Air Force evaluation was forwarded to the applicant for review and comment within 30 days. To date, a response has not been received.

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 applicant’s submission was thoroughly reviewed, and his contentions were duly noted. However, we do not find his assertions, in and of themselves, sufficiently persuasive to override the rationale provided by the Associate Chief, Military Justice Division. The applicant’s discharge had its basis in his trial and conviction by special court-martial.  After careful consideration of the available evidence, we found no indication that the actions taken to effect his discharge were improper or based on factors other than his own misconduct. We therefore conclude that the discharge was proper and the characterization of his service was appropriate to the existing circumstances. In addition, in view of the contents of the FBI Identification Record we are not persuaded that the characterization of the applicant’s discharge warrants an upgrade to general on the basis of clemency. Having found no error or injustice with regard to the actions that occurred while the applicant was a military member, we conclude that no basis exists to grant favorable action on his request.

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.

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 Docket Number BC-2008-02498 in Executive Session on 9 Dec 08, under the provisions of AFI 36-2603:

Panel Chair 
Member
Member
The following documentary evidence pertaining to Docket Number BC-2008-02498 was considered:

Exhibit A. DD Form 149, dated 11 Jul 08, w/atch. Exhibit B. Applicant's Master Personnel Records. Exhibit C. FBI Report of Investigation.
Exhibit D.	Memorandum, AFLOA/JAJM, dated 3 Sep 08. Exhibit E.	Letter, SAF/MRBR, dated 19 Sep 08.
Exhibit F.  Letter, AFBCMR, dated 24 Oct 08, w/atchs.