AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97-03646 
COUNSEL:  None 

HEARING DESIRED:  Yes 

Applicant  requests  that  his  bad  conduct  discharge  (BCD)  be 
upgraded to honorable; that his full rank be  restored; that his 
conviction  be  overturned;  and, that  he  be  compensated  for  all 
lost  wages  and  allowances  to  include  the  Voluntary  Separation 
Incentive (VSI) program.  Applicant's submission is at Exhibit A. 

The  appropriate Air  Force office  evaluated  applicant's request 
and provided  an advisory opinion to the Board  recommending the 
application  be  denied  (Exhibit C).  The  advisory  opinion  was 
forwarded to the applicant for review and response  (Exhibit D ) .  
Applicant's response to the advisory opinion is at Exhibit E. 

After  careful  consideration  of  applicant's  request  and  the 
available evidence  of  record, we  find  insufficient evidence of 
error or injustice to warrant corrective action.  The facts and 
opinions stated in the advisory opinion appear to be based on the 
evidence  of  record  and  have  not  been  adequately  rebutted  by 
applicant. 
Absent  persuasive  evidence  applicant  was  denied 
rights  to  which  entitled,  appropriate  regulations  were  not 
followed, or appropriate standards were not applied, we  find no 
basis to disturb the existing record. 

Accordingly, applicant's request is denied. 

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 staff is directed to inform applicant of this decision. 
Applicant should also be informed that this decision is final and 
will only be  reconsidered upon the presentation of new relevant 
evidence  which  was  not  reasonably  available  at  the  time  the 
application was filed. 

Members  of  the  Board  Mr.  Michael  P.  Higgins,  Mr.  Richard  A. 
Peterson, and Mr. Patrick R. Wheeler considered this application 
on 2 February 1999 in accordance with the provisions of Air Force 
Instruction 3 6 - 2 6 0 3 ,   and the governing statute, 10, U.S.C, 1552. 

Exhibits : 
A.  Applicant's DD Form 149 
B.  Available Master Personnel Records 
C.  Advisory Opinion 
D.  AFBCMR Ltr Forwarding Advisory Opinion 
E.  Applicant's Response 

Panel Chair 

DEPARTMENT OF THE  AIR  FORCE 
A I R   FORCE  L E G A L  S E R V I C E S  AGENCY  ( A F L S A )  

MEMORANDUM FOR AFBCMR 

FROM:  AFLSNJAJM (Maj Hogan) 
112 Luke Avenue, Room 343 
Bolling AFB, DC 20332-8000 

1 7  AUG  1998 

ed 12 November 199 
the applicant, requests 

nduct 

discharge (BCD) from the Air Force be upgraded to honorable, that his full rank be restored, that 
his conviction be overturned, and that he be compensated for all lost wages and allowances to 
include the VSI program.  The applicant was court-martialed on 20 March 1996 and was 
sentenced to a BCD, eight months confinement, total forfeitures and reduction to Airman Basic. 
The applicant’s case and sentence was affirmed on appeal.  The applicant’s bad conduct 
discharge went into effect on 5 August 1997. The application was  submitted within the three- 
year limitation provided by  10 U.S.C. 1552(b). 

Facts of military justice action:  On 20 March 1996, the applicant plead and was found 

guilty at a general court-martial 
convicted of five specification 
the applicant’s dishonorable failure to pay ju 
was assigned to a joint NATO assignment in 
fro- 
elderly Nonvegi 
permission, used a telephone account in 
$14 12.90 in telephone and col 
since the bill was in her name. 
the applicant agreed to pay o 
stopped making payments on the phone bill. 
bill in order to avoid legal action.  The applic 

The applicant was 
he specifications involved 
ts were incurred while the applicant 
The applicant had rented a house 

name.  He incurre 

Hotel $232.71 for telephone charges made while residing there.  Prior to the court- 

martial, the applicant acknowledged these were his legitimate debts and said he would arrange to 
pay them.  However, he made no effort to pay these debts over a period of a year and a half. 

. The applicant also owed 

>- 

During his court-martial, the applicant was properly advised of all of his rights.  They 
included his right to plead innocent, his choice of forum (members or military judge), and his 
right to be represented by defense counsel.  The applicant chose to be represented by his defense 
counsel, -After 
found guilty of all-of the charges.  He was sentenced to a BCD, 8 mos confinement, total 
forfeitures and reduction to the grade of airman basic.  The United States Air Force Court of 
Criminal Appeals affirmed the trial court’s decision on 3 Jan 97.  On 3 July 1997, the Court of 
Appeals for the Armed Forces denied the applicant’s petition for a grant of review. 

being advised of his rights, the applicant plead and was 

Applicant’s contentions:  The applicant claims he was denied due process.  He alleges 

1995 he went to the first Area Defense Counsel’s office and the ADC 
efused to speak with him about his cas 

uld not see him but told 

licant one month later 

legal counsel once again in October 199 
him he was going to be court-martialed. 
in November 1995 and asked if he had d 
trying for several months to seek the ad 
someone in 
defense counsel in December 1995. 

ould be appointed to represent him. 

The applicant claims that he had only 45 days to prepare his case while the Government 

s defense counsel only 4-5 times 
neglected to inform him that by 
ges.  The applicant complains that 

had 13 months to prepare.  The applicant s 
prior to trial.  He claims his defense counse 
pleading guilty you are not allowed to co 
his defense counsel neglected to introduce to the court pay statements that he alleges may have 
reduced his sentence since it showed that he was unable to satisfy the debts in question because 
of wage garnishments.  The applicant now alleges that his actions were not dishonorable since 
he had no finds available to pay these debts.  He also alleges that he was illegally held past of his 
date of separation which was 2 December 1995 since he had not been 
licant attached a copy of a le 
ating that he believed he was being unlawfully 

punished prior to trial. 

Discussion:  The record of trial makes it clear that the applicant dishonorably failed to 

pay the five debts as alleged in the charge and five specifications.  It appears from the Stipulation 
ous intention of repaying his landlady or 
of Fact that the 
any of his other 
plea inquiry, the applicant admitted to 
repay these debts.  In addition, the 
owing all these 
applicant admits in his 1 
that he had further financial problems 
is car was re-possessed, he bounced a couple checks at 
once he was reassigned 
AAFES, billeting and the Commissary.  The applicant now claims the failure to pay his debts 
were not dishonorable since he had no money to repay the debts since his wages were being 
garnished by other creditors.  The applicant had sole control over his financial situation. His 
debts were legitimate and he alone was responsible for making payments on these debts.  The 

fact that the applicant had other creditors to pay is not a legitimate defense for failing to pay the 
debts he left behind in 

A review of the applicant’s record of trial clearly shows that the applicant has not 

suffered any material error or injustice in his case.  The applicant’s court-martial was properly 
convened and had jurisdiction over the applicant and the offenses tried.  The decision of the court 
and sentence was ultimately affirmed by the Air Force Court of Criminal Appeals.  The applicant 
plead and was found guilty by the military judge.  A bad conduct discharge is an appropriate 
punishment for the offenses the applicant has committed.  It should be noted that none of the 
issues the applicant raises in this appeal were raised during his court-martial or during the 
appellate process. 

The applicant was provided a defense counsel to represent him during the court-martial. 

It would appear that the defense counsel advised the applicant to plead guilty because the 
evidence against him was overwhelming.  In addition, the applicant entered into a pre-trial 
agreement in order to achieve a favorable sentence limit.  During trial, the military judge 
methodically questioned the applicant regarding his willingness to plead guilty as well as his 
willingness to enter into a pre-trial agreement.  The applicant testified under oath at court that he 
was entering into the pretrial agreement and pleading guilty on his own volition.  During the 
court-martial, the applicant was informed that by pleading guilty he was waiving his right to a 
trial where the government would have to prove his guilt beyond a reasonable doubt.  The 
applicant acknowledged on the record that he understood and that he still wanted to plead guilty. 

The applicant alleges that his enlistment expired on 2 December 1995 and that he was 

wrongfully kept on active duty since he was not formally charged until 1996. The applicant was 
aware that he was placed on administrative hold since he was under investigation.  Active-duty 
military personnel can be placed on administrative hold if they are under investigation until the 
investigation and any recommended disposition is complete.  This procedure is routine for 
military members who are under investigation.  It should be noted that the applicant’s record of 
trial and the Stipulation of Fact entered into during his trial state that the applicant extended his 
enlistment until 2 August 1996.  As such, his enlistment did not expire on 2 December 1995. 

9 

A BCD is an appropriate punishment in the applicant’s case.  He had over $7800 in 

unpaid debts upon leavin 
admitted his guilt during 
his crimes.  He has provided no compelling justification for granting the relief requested. 

made no attempt to repay these debts.  The applicant 
ial but now appears to refbe to accept responsibility for 

I 

Recommendation:  After reviewing the available records, I conclude that administrative 

relief by this office is not warranted.  The applicant has failed to provide a sufficient basis for 
granting his request.  I recommend that the Board deny this application based on its merits. 

"LOREN S. PERLSTEIN 
Associate Chief, Military Justice Division 
Air Force Legal Services Agency