RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2004-02270
		INDEX CODES:  A71.00, A74.00

		COUNSEL:  NONE

		HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His dishonorable discharge be upgraded.

_________________________________________________________________

APPLICANT CONTENDS THAT:

Based on the evidence presented at his court-martial, he believes he received an inappropriate discharge.

Applicant’s complete submission is at Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

Applicant’s available military personnel records indicate that on 16 Aug 84, a special court-martial convened and the applicant was charged with failure to obey a lawful command, breach of restraint of correctional custody, unauthorized absence from an organization, failure to remain at his place of duty, and failure to repair.  He was granted a continuance until 11 Sep 84.  He was placed on leave status until 7 Sep 84; he never returned to duty.

On 21 Sep 84, he was tried in absentia and found guilty of all charges except the breach of restraint of correctional custody.  He was sentenced to a bad conduct discharge (BCD), confinement at hard labor for four months, forfeiture of $397.00 per month for four months, and reduction to E-1.

Applicant was subsequently apprehended on 17 May 85 and was placed in confinement to serve the four-month sentence adjudged at his special court-martial.  He was charged with desertion, possession of marijuana and impersonating a noncommissioned officer (NCO).  On 29 Aug 85, a general court-martial was convened and the applicant was found guilty of desertion and impersonating an NCO, but not guilty of possession of marijuana.  He was sentenced to a dishonorable discharge, confinement for 18 months, and forfeiture of all pay and allowances.

Having been finally affirmed, on 24 July 86, the dishonorable discharge was ordered to be executed.

_________________________________________________________________

AIR FORCE EVALUATION:

AFLSA/JAJM recommended denial indicating there is no basis for upgrading the applicant’s discharge.  The appropriateness of the applicant’s sentence, within the prescribed limits, is a matter within the course of the appellate review process.  The applicant had the assistance of counsel in presenting extenuating and mitigating matters in their most favorable light to the court and the convening authority.  These matters were considered in review of the dishonorable discharge.  Thus, the applicant was afforded all rights granted by statute and regulation.

According to AFLSA/JAJM the applicant’s punitive discharge accurately reflects the character of his service.  Desertion and impersonating an NCO are dishonorable acts.  The maximum punishment authorized for the offenses for which the applicant was convicted during his second court-martial was a dishonorable discharge, confinement for three years and six months, total forfeitures, and reduction to E-1.  The sentence was well within the legal limits and was a fitting punishment for the offenses committed.  Despite the applicant’s contentions, the sentence was not disproportionate to either the offenses or his prior military record.  Conversely, the requested relief, an upgrade in discharge characterization is inappropriate given the seriousness of the applicant’s crimes.  In AFLSA/JAJM’s view, the applicant has identified no error or injustice related to his prosecution or the sentence.  The applicant presented insufficient evidence to warrant upgrading the discharge, and he did not demonstrate an equitable basis for relief.

A complete copy of the AFLSA/JAJM evaluation is at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 19 Nov 04 for review and response.  As of this date, no response has been received by this office (Exhibit D).

_________________________________________________________________

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 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 (OPR) and adopt its rationale as the basis for our conclusion the applicant has not been the victim of an error or injustice.  The evidence of record indicates he was sentenced to a dishonorable discharge, confinement for 18 months, and forfeitures of all pay and allowances as a result of his conviction by general court-martial for desertion and impersonating an NCO.  He now requests that his dishonorable discharge be upgraded because he believes it was inappropriate.  After a thorough review of the facts and circumstances of this case, we find no evidence which indicates the applicant’s dishonorable discharge was improper or that it exceeded the limitations set forth in the Uniform Code of Military Justice (UCMJ).  Furthermore, because of the lack of information pertaining to his activities since leaving the service, we do not find upgrading the applicant’s dishonorable discharge based on clemency appropriate in this case at this time.  In view of the foregoing, and in the absence of sufficient evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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 issues 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 this application in Executive Session on 3 Mar 05, under the provisions of AFI 36-2603:

The following documentary evidence pertaining to AFBCMR Docket Number BC-2004-02270 was considered:

    Exhibit A.  DD Form 149, dated 15 Jul 04.
    Exhibit B.  Applicant's Master Personnel Records.
    Exhibit C.  Letter, AFLSA/JAJM, dated 16 Nov 04.
    Exhibit D.  Letter, SAF/MRBR, dated 19 Nov 04.