RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2010-02664 COUNSEL: NONE HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His Bad Conduct Discharge (BCD) be upgraded to general (under honorable conditions) and his narrative reason for separation be changed. _________________________________________________________________ APPLICANT CONTENDS THAT: His punishment was too harsh for his first offense and his defense counsel was ineffective. His BCD has limited his post- military employment opportunities, including his ability to reenlist in other military services. He made a bad decision in stealing the televisions, but he did so in order to get enough money to visit his hospitalized mother. In support of his appeal, the applicant provides copies of a Department of Veteran Affairs (DVA) statement in support of his claim; his DD Form 214, Certificate of Release or Discharge from Active Duty; a request for clemency; and a request for voluntary entry into the Return to Duty Program (RTDP). The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: The applicant is a former member of the Regular Air Force who entered active duty on 3 February 2004 in the grade of airman basic (E-1) and was promoted to the grade of airman first class (E-3) effective 6 August 2004. On 11 July 2005, the applicant was tried at a special court- martial for larceny of military property, in violation of Article 121, Uniform Code of Military Justice (UCMJ) for stealing six television sets from base lodging and selling them to a pawnshop. The applicant pled guilty to the charge and specification and was sentenced to a BCD, confinement for five months, and reduction to the grade of airman basic. On 8 September 2005, the convening authority approved the findings and sentence as adjudged but directed that any mandatory forfeitures of pay be made to the applicant’s wife. On 16 June 2006, the Air Force Court of Criminal Appeals found the findings and sentence correct in law and fact. On 27 September 2006, the United States Court of Appeals for the Armed Forces declined to review the applicant’s case, making his conviction and sentence final under the UCMJ. The applicant was discharged effective 29 November 2006 with a BCD and a narrative reason for separation of “Court-Martial (Other).” He served two years, ten months, and nine days on active duty. On 16 July 2009, the Air Force Discharge Review Board (AFDRB) considered and denied the applicant’s request to upgrade his discharge, to change the reason and authority for discharge, and to change his reenlistment eligibility code. _________________________________________________________________ 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 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 find no evidence which indicates 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 the applicant's overall quality of service, the special court-martial conviction which precipitated the discharge, and the seriousness of the offenses of which convicted, e.g., larceny of government property. Based on the evidence of record, we are not persuaded that the characterization of his discharge warrants an upgrade to general on the basis of clemency. In view of the above, 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 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 AFBCMR Docket Number BC-2010-02664 in Executive Session on 7 April 2011, under the provisions of AFI 36-2603: The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2010-02664: Exhibit A. DD Forms 149, dated 6 Oct 10, w/atchs. Exhibit B. Applicant's Master Personnel Records.