RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2008-03220
		INDEX CODE: 110.00
		COUNSEL:  NONE
		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

1.  His bad conduct discharge (BCD) be upgraded.

2.  His identification card (ID) and Department of Veterans Affairs (DVA) benefits be reinstated.

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APPLICANT CONTENDS THAT:

His service was deemed honorable and he is proud to have served in the Air Force.  Even though the charges occurred while he was on active duty they did not interrupt his service to the Air Force and to the job he loved.  He is truly sorry for what he did.  He believes the Board should find it in the interest of justice to consider his request because of his loyalty and dedication to the mission while on active duty.

In support of his request, applicant provided a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; copies of character reference letters, AF Forms 910, Enlisted Performance Report (AB-TSGT); AF Forms 931, AB-TSGT Feedback Worksheet and various others documents in support of his request.

His complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

The applicant enlisted in the Regular Air Force on 6 April 1992.

Between June 1996 and January 1997, the applicant, then a senior airman held an off-duty job as a part-time sales associates with a jewelry store in Glendale, Arizona.  On diver’s occasions he stole approximately $16,963.00 worth of jewelry, in violation of Article 121, Larceny and Wrongful Appropriation, Uniform Code of Military Justice (UCMJ).  On 15 October 1997, he was tried at a general court-martial at Luke Air Force Base (AFB).  At trial he stipulated that on multiple occasions he wrongfully stole items of jewelry from the store where he was employed.  He sold many of the items at pawn shops and gave others to his girlfriend and mother.  He pled guilty and was found guilty of the charge and specification.  He was sentenced to a BCD, confinement for two years and reduced to the grade of airmen basic.  The convening authority approved the sentence as adjudged.

On 14 September 1998, he was discharged in the grade or airman basic with a BCD.

On 24 December 2008, a request for post-service information was forwarded to the applicant for response within 30 days.  In response to our request, applicant provided post-service information along with character reference statements from his parents.

His complete response, with attachments, is at Exhibit F

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AIR FORCE EVALUATION:

AFLOA/JAJM recommends denial.  JAJM states the fact the applicant’s crime occurred off base does not render a BCD inappropriate punishment.  The maximum available punishment for his offenses included a dishonorable discharge and confinement for five years.  A BCD was an available and proper punishment for his offenses.

Second, his assertion that his crimes had no impact on his military service ignores the fact that he was removed from his position as Phase Inspection Team member prior to trial, placed in confinement after trial and ultimately discharged with a BCD. At his trial he appeared to acknowledge the impact his crimes had on his military service when he apologized in an unsworn statement for the trouble and pain he inflicted on the jewelry store, friends, management, family, supervisors and the Air Force.

Third, evidence of his military character was considered at trial.  He submitted his enlisted performance reports and numerous character statements attesting to his work performance and rehabilitation potential and discussed his duty performance in an unsworn statement.  In fact, his military character was addressed during sentencing arguments.  Acknowledging that he had prior good service, government counsel argued that his crimes were an embarrassment to military members and did not live up to the character traits his rank represented.  Government counsel argued he turned his back on the Air Force when he committed the offenses and therefore deserved a punitive discharge.  Defense counsel acknowledged the breach of trust his crimes represented but urged consideration of the positive character statements submitted on his behalf including the fact six of the statements were from noncommissioned officers who were aware of his crimes.  Accordingly, he had the opportunity to present evidence of his military character at trial and that evidence was considered.

While clemency may be granted it is not warranted in this case. To accept his contention that his service should be characterized as honorable would require the Board to overlook his general court-martial conviction for larceny of approximately $16,963 worth of jewelry from his off-duty employer.  Furthermore, it will require the Board to substitute its judgment for that rendered by the court and the convening authority over 11 years ago when evidence of the facts and circumstances was fresh.  A BCD was a proper sentence and properly characterizes his service.  The application is untimely and there is no basis for upgrading the bad conduct discharge. 

The complete JAJM 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 on 12 December 2008 for review and comment within 30 days.  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.  After careful consideration of the available evidence, we agree with the opinion and recommendation of the Military Justice Division and adopt its rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice.  We considered upgrading the discharge based on clemency; however, we do not find the evidence presented is sufficient to compel us to recommend granting the relief sought on that basis.  Regarding his request for issuance of an ID card and reinstatement of DVA benefits, we find no evidence that the applicant meets eligibility requirements for issuance of an ID card and since we have no authority with respect to his eligibility for DVA benefits, he must address his concerns to the DVA.  Therefore, in 

the absence of evidence to the contrary, we find no basis upon which to recommend granting the relief sought.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of 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-2008-03220 in Executive Session on 29 January 2009, under the provisions of AFI 36-2603:

			XXXXXXXXXX, Panel Chair
			XXXXXXXXXX, Member
			XXXXXXXXXX, Member

The following documentary evidence was considered:

Exhibit A.  DD Form 149, dated 16 October 2008, w/atchs. 
Exhibit B.  Applicant's Master Personnel Records.
Exhibit C.  Letter AFLOA/JAJM, dated 24 November 2008.
Exhibit D.  Letter, SAF/MRBR, dated 12 December 2008.
Exhibit E.  FBI Report, 24 December 2008.
Exhibit F.  AFBCMR Letter, dated 24 December 2008, w/atch.
Exhibit G.  Letter, Applicant, dated 29 January 2009, w/atchs.

                                   XXXXXXXXXX
                                   Panel Chair