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AIR FORCE  BOARD FOR  CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

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IN THE MATTER OF: 

DOCKET NUMBER:  98- 00230 
COUNSEL:  NONE 

HEARING DESIRED:  NO 

APPLICANT REQUESTS t THAT: 

His  27  January  1 9 8 9   bad  conduct  discharge  (BCD) be  upgraded  to 
honorable. 

*e 

APPLICANT CONTENDS THAT: 

His  active  duty  military  record  does  not  correctly  reflect  the 
person  that he  is now.  During his military  career, at  times, he 
was very vulnerable and made mistakes that he cannot change and he 
was  punished  for them.  Since his discharge, he  has matured  as a 
person, husband, and father and is now a very productive member of 
his community. 

In  support  of  his  request,  applicant  provided  his  expanded 
comments,  four  letters  of  character  reference  from  current  and 
previous  employers,  and  a  certificate  of  appreciation  received 
while he was on active duty.  (Exhibit A) 

* 

STATEMENT OF FACTS: 
On 17 February 1982,  applicant contracted his initial enlistment in 
the Regular Air  Force.  He  served on  continuous active duty,  and 
entered  his  last  enlistment  on  28  February  1 9 8 5 .  
The  record 
reflects that on 21 April 1983,  applicant received punishment under 
the provisions of Article 15,  UCMJ, for wrongful use of marijuana. 
The punishment consisted of a  reduction in grade from airman first 
class  (E-3) to airman  (E-2) .  Prior to the events under review, he 
attained  the  rank  of  sergeant  (E-4) . 
There  are  seven  Airman 
Performance Reports  ( A P R s )   in the record reflecting overall ratings 
of  (oldest to latest) :  8,  9,  9,  9,  9,  9,  and 2 .  
Applicant was  tried  by  general  court-martial  (GCM) on  27 November 
1987.  He was charged with five counts of larceny and one count of 
wrongfully  opening  mail,  in  violation  of  Articles  121  and  134, 
UCMJ, respectively.  The applicant pled  guilty  to all counts with 
the exception of one count of larceny  (of which he was subsequently 
acquitted). 
The  applicant  was  sentenced  to  a  bad  conduct 

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discharge;  confinement  for  eight  months;  forfeiture  of  $300 .per 
month for eight months; and reduction in grade to airman  03-2). 
On 
1 2   February 1988,  the  GCM  authority approved the  entire  sentence, 
and  except  for  the  BCD,  the  sentence was  executed.  On  2 2   April 
1988,  the Air  Force Court of Military Review approved the findings 
of  guilty and  the  sentence.  On  1 8   May  1988,  that portion  of  the 
sentence to confinement in excess of seven months  was  remitted by 
the GCM.  The Court of Military Appeals denied applicant's  petition 
for a Grant of Review.  On 12 December 1988,  the BCD was executed. 
On  2 7   January  1989,  applicant was  discharged  with  a  bad  conduct 
discharge  (BCD).  At  the  time  of  his  discharge,  he  was  credited 
with  6  years,  5  months,  and  18  days  of  active  duty  service 
(excludes 1 7 6   days of lost time due to confinement). 
Pursuant to the  request of  the Board  on  2 6   May  1998,  the  Federal 
Bureau of Investigation, Clarksburg, WV, indicated on 5 June 1998, 
that, on the basis of data furnished, they are unable to locate an 
arrest record  (Exhibit C). 

A I R   FORCE EVALUATION: 
The Associate Chief, Military Justice Division, AFLSA/JAM, reviewed 
this application and concluded that administrative relief by  their 
office is not possible or  appropriate.  Since the application was 
untimely filed, JA recommended that the Board interpose the statute 
of limitations.  Their comments, in part, follow. 

JA stated that  if the Board  does waive  the three  year  statute of 
limitations, the  facts of  this  case do  not  warrant  an  upgrade  of 
the 'applicant's  discharge.  The case file accurately reflects the 
action taken by  reviewing authorities so  correction of  clerical or 
administrative errors  as  contemplated  under  10  USC  1552(f)(1)  is 
unnecessary. 
Clemency  under  Section  1552 ( f )   is  not  appropriate 
because  the  applicant  has  submitted  no  evidence  that  his  court- 
martial was improperly convened or conducted. 

While  it  is  commendable that  the  applicant  has  apparently  turned 
his  life  around,  one  can  logically  infer  that  the  court-martial 
punishment  helped,  at  least  in  part,  to  motivate  him  to  do  so. 
Furthermore, the imposed punishment remains today, as it was at the 
time it was executed, a completely accurate characterization of the 
applicant's  misconduct.  The court-martial conviction and  sentence 
was  supported in both  law and  fact.  His present  contributions to 
his  family  and  community  do  not  erase  the  fact  that  a  military 
judge and the applicant's  commanders, after careful consideration, 
determined he deserved a BCD.  Restoring his discharge to honorable 
would diminish the value  of  the discharge  structure for Air  Force 
personnel, who unlike the applicant, served honorably.  Therefore, 
his application should be denied for being without merit. 

The complete evaluation is at Exhibit D. 

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AFBCMR  98- 00230 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 
A copy of the Air Force evaluation was forwarded to the applicant 
on 19 March 1998 for review and comment within 30 days.  As of this 
date, no response has been received by this office. 
On 22 May  1998, the AFBCMR offered the applicant an opportunity to 
provide  additional  information pertaining  to his  activities  since 
leaving  the  service  and  provided  him  a  copy  of  the  Information 
Bulletin -  Upgrade of Discharge -  Clemency  (Exhibit F).  As of this 
date, no further response has been received from the applicant. 

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 f i l e .  
3.  Insufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable error or injustice.  We noted 
applicant's complete submission in judging the merits of the case. 
However,  we  agree  with  the  comments  of  the  Military  Justice 
Division  (AFLSA/JAJM) and  adopt  their rationale  as  the basis  for 
our conclusion that  the  applicant has  not  been  the  victim  of  an 
error  or  injustice.  The  evidence provided  indicates that  he  is 
held in high esteem by his employers since his separation.  We note 
that prior  to the  time of  his misconduct, his performance  of  his 
Air' Force duties was also considered to be excellent.  Nonetheless, 
in  view  of  the  seriousness  of  the  misconduct  which  led  to  his 
court-martial and subsequent discharge and the paucity and  limited 
scope of the post-service evidence provided, we are not inclined to 
recommend an upgrade of  the  characterization of  his  discharge  on 
the basis of clemency at this time.  In view of the foregoing, and 
in the absence of evidence that the applicant's  court-martial was 
improper or that the punishment was unduly harsh, the applicant's 
request is not favorably considered. 

THE BOARD DETERMINES THAT: 
The  applicant  be  notified  that  the  evidence  presented  did  not 
demonstrate the existence of probable 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. 

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AFBCMR 98-00230 

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The  following members of  the Board  considered this application. in 
Executive Session on 10 December 1998,  under the provisions of AFI 
36-2603: 

Mr. Henry C. Saunders, Panel Chair 
Ms.  Sophie A. Clark, Member 
Ms. Ann L. Heidig, Member 

The following documentary evidence was considered: 

Exhibit 
Exhibit 
Exhibit 
Exhibit 
Exhibit 

A. 
B. 
C. 
D. 
E. 

DD Form 149, dated 27 Jan 98,  w/atchs. 
Applicant's Master Personnel Records. 
FBI Report, dated 5 Jun 98. 
Letter, AFLSA/JAJM, dated 4  Mar 98. 
Letter, SAF/MIBR, dated 1 9   Mar 98;  Letter, 
AFBCMR, dated 22 May 98 

Y C. SAUNDERS 

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AFBCMR 98- 00230